The base point of time for determining whether transferred assets are one house for one household;

Whether the transferred asset constitutes one house for one household shall be determined at the time of transfer, and even if the resident becomes a non-resident after meeting the requirements of one house for one household as a resident, it shall not be determined based on the time when the resident becomes a non-resident.

Article 5 subparagraph 6 (i) of the Income Tax Act, Article 2 and Article 15 (1) of the Enforcement Decree of the same Act

Supreme Court en banc Decision 83Nu446 delivered on March 27, 1984 (Gong1984,734) 87Nu526 delivered on October 13, 1987 (Gong1987,173) 92Nu1298 delivered on January 19, 1993 (Gong193Sang,763)

[Judgment of the court below]

The director of Gwangju Tax Office

Gwangju High Court Decision 90Gu1303 delivered on April 22, 1993

The judgment of the court below is reversed and the case is remanded to Gwangju High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff transferred the building of this case and the Han-si building of this case to the non-party 1 corporation on the 2nd day of May 8, 1980 and transferred the building of this case to the non-party 1, 200 square meters of the remaining site and the Han-si building of this case to the non-party 1 corporation on the 15th day of December 28, 1988, because the plaintiff used the building of this case to the non-resident 1 corporation and the non-resident 2nd day of May 1, 1980, and then transferred the building of this case to the non-resident 2nd day of May 1, 198 (the non-resident 2nd day of this case to the non-resident 5th day of this case to the non-resident 1 corporation on the 19th day of this case's 6th day of July 29, 197, and the plaintiff transferred the house to the non-party 1 corporation.

However, as determined by the court below, if the plaintiff was living in the building of this case with his father and the next male family before leaving Japan, even if the plaintiff left Korea with his wife and became a non-resident, it is difficult to view that the plaintiff became a non-resident due to emigration of all members of the household. In addition, whether the transferred assets constitute one house for one household should be determined at the time of transfer (see, e.g., Supreme Court Decision 92Nu1298, Jan. 19, 1993; 87Nu526, Oct. 13, 1987; 87Nu526, Oct. 13, 1987); and even if a non-resident becomes a non-resident after meeting the requirements of one house for one household as a resident, it should not be determined at the time when the resident becomes a non-resident.

According to the statements in Eul evidence Nos. 2 and Eul evidence Nos. 4 through 10, which the court below rejected, the building of this case was leased to the non-party from around 1978 to January 1, 198, and most of it was used as a hospital. Since the whole body of the building and a large portion of the body were left neglected as an abandoned house in the state of hospital use, it can be seen that the area of the residential part at the time of transfer is smaller than that of the non-residential part, it cannot be viewed as a house pursuant to the proviso of Article 15 (3) of the Enforcement Decree of the Income Tax Act.

In addition, according to the records, even if the building of this case and the building of this case ( Address 1 omitted) were to form a combined house, it seems that the area of the part used for residential purpose among the entire building as of May 22, 1980, was not larger than that of the part used as a non-residential hospital.

The purpose of Article 15(3) of the Enforcement Decree of the Income Tax Act and Article 6(2) of the Enforcement Rule of the same Act is to decide that the first transfer of a house deemed as one house for one household is not considered as one house for one household, but the remaining part of a house is considered as one house for one household, and is not subject to tax exemption on capital gains without considering the ratio of the size of the house and the non-housing area as one house for one household.

The Supreme Court Decision 80Nu165 Decided November 11, 1980 cited by the court below concerning the case where the area of the part used for a residential purpose is larger than that of the part used for a non-residential purpose, and it is not appropriate in this case as a whole.

Therefore, the court below should examine and determine the actual conditions of use of the building of this case as of the time of transfer of the remaining building of this case, and thereby determine whether it constitutes one house for one household subject to non-taxation of capital gains tax. However, the court below determined otherwise as of the time when the plaintiff became a non-resident. The court below erred by misapprehending the legal principles on the point of time of determining one house for one household, which led to the failure to exhaust all necessary deliberations.

Therefore, the judgment of the court below without examining the remaining grounds of appeal is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sik (Presiding Justice)