A. Purpose of legislation under Article 15(6) of the Enforcement Decree of the Income Tax Act

B. Whether a person falling under one house per household is subject to the imposition of capital gains tax in cases where he/she has already become two houses per household due to marriage with a spouse who has already acquired a house by inheritance (affirmative)

A. According to Article 15(6) of the Enforcement Decree of the Income Tax Act, where a person who falls under one house for one household under paragraph (1) of this Article acquires a house by inheritance, the house first transferred shall be considered as one house for one household. Thus, if a person who owns one house for one household and thus is not subject to the transfer income tax becomes two houses for one household due to the reason that he is inherited without his intention or choice, he would be entitled to non-taxation benefits for the house first transferred at his option, thereby providing two houses for one household, which would result in the extinguishment of non-taxation benefits of the transfer income tax, thereby remedying any disadvantage caused by the extinction of non-taxation benefits of the transfer income tax.

B. In a case where a person who falls under one house per household becomes two houses for one household due to marriage with another person, even though his spouse acquired the two houses or part of his shares by inheritance, the fact that he became two houses for one household cannot be prevented by his own intention or choice, and thus, he could dispose of one in advance, and thus, he cannot be said to have lost the benefits of non-taxation, or could not be prepared therefor. Thus, it cannot be said that the person who falls under one house for one household is treated as two houses for one household by inheritance, and thus, it cannot be said that the above provisions of the Enforcement Decree should be expanded and applied.

Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 (1) and Article 15 (6) of the Enforcement Decree of the same Act

A. Supreme Court Decision 92Nu886 delivered on April 28, 1992 (Gong1992, 1767)

Plaintiff

The director of the tax office.

Seoul High Court Decision 92Gu13860 delivered on September 22, 1992

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below found that the plaintiff acquired the apartment of this case on April 10, 1984, and resided together with his family on December 1, 1989, and married with the non-party 1 on December 1, 1989, and the above non-party 1 died on October 10, 1986, his mother, his father, who was his father, was jointly inherited with the non-party 3 and the non-party 4, and therefore, he became two houses for one household, and the plaintiff was first transferred the apartment of this case on December 7, 190, and the defendant imposed the transfer income tax, etc. of this case on the ground that it does not constitute one house for one household. The summary of the reasons are as follows.

Article 5 (1) and (6) of the Enforcement Decree of the Income Tax Act provides that one house for one household which does not impose capital gains tax shall be the case where the resident and his spouse own one house in the Republic of Korea and reside (or for five or more years) for three or more years at the same address and the family members living together with the same family members. If a person who falls under this provision acquires a house by inheritance, the house first transferred shall be regarded as one house for one household. The legislative intent of the above provision is not to acquire a house by inheritance, but to acquire two or more houses by inheritance (or its shares), and to acquire two or more houses by inheritance, it shall be deemed that it is reasonable to give the spouse benefits of non-taxation as one house for one household prior to and after the inheritance of the person's house under Article 15 (6) of the Enforcement Decree of the Framework Act on National Taxes unless the spouse acquires a house by inheritance, and thus, it shall be interpreted as one of the parties who already acquired a house by inheritance of one household after the inheritance of one household.

2. It seems that the original decision on the legislative intent of Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 (1) and Article 15 (6) of the Enforcement Decree of the same Act is correct. However, it is difficult to accept the interpretation of the original decision on Article 15 (6) of the Enforcement Decree of the same Act.

According to Article 15(6) of the Enforcement Decree of the above Act, where a person who falls under one house for one household becomes one of the two houses for one household by inheritance, the first transferred house shall be considered as one house for one household. In this case, where a person who owns one house for one household and is exempted from capital gains tax by holding one house for one household becomes two houses for one household due to the reason that he is inheritance without his intention or choice, the first transferred house shall be granted non-taxation benefits, and thus, the purpose is to relieve the disadvantage caused by the extinction of non-taxation benefits of capital gains tax by becoming two houses for one household at his option. Thus, if a person who falls under one house for one household becomes two houses for one household due to marriage with another, his spouse was acquired by inheritance, but in this case, it is not possible to prevent him from becoming two houses for one household, and thus, he cannot be subject to non-taxation or one of the two houses for one household, and thus, he cannot be subject to non-taxation benefits in advance.

Therefore, the judgment of the court below is erroneous in the application of Article 15 (6) of the Enforcement Decree of the Income Tax Act, and its reasoning is justified.

Therefore, the judgment of the court below is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices.