A. Nature of Article 15(11) of the Enforcement Decree of the Income Tax Act, which provides for a period of residence of the old house among the residential requirements for non-taxation of capital gains tax (=general provision)

(b) The case holding that the acquisition value of the existing building shall not be included in the necessary expenses in calculating transfer income tax, in case where the building was removed after 10 years have elapsed since the acquisition of the existing building and the new building was built and transferred after its relocation;

A. Article 15(11) of the Enforcement Decree of the Income Tax Act provides that the period of residence of a new and old house can be aggregated among the residential requirements for non-taxation of capital gains tax shall be a principle provision.

(b) The case holding that the acquisition value of the existing building shall not be included in the necessary expenses in calculating transfer income tax, in case where the building was removed after 10 years have elapsed since the acquisition of the existing building and the new building was newly built; and

(a) Article 15 (11) of the Enforcement Decree of the Income Tax Act;

A. Supreme Court Decision 92Nu5713 delivered on July 28, 1992 (Gong1992, 2690). Supreme Court Decision 92Nu7399 delivered on September 8, 1992 (Gong1992, 2917)

Plaintiff

Head of Ansan Tax Office

Seoul High Court Decision 91Gu26371 delivered on May 7, 1992

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

We examine the grounds of appeal.

With respect to the first and second points

1. According to the reasoning of the judgment below, while the plaintiff acquired the previous house on May 20, 1978 and resided on the land of this case and on the land of this case, the court below rejected the plaintiff's transfer of the building of this case on August 24, 1988 because it was destroyed the previous house on August 24, 198, and continuously resided on the new house and transferred it on October 31, 1989. In this case, the plaintiff's assertion that for three years or more of the first house of one household which is exempt from capital gains tax should be determined by adding up the period of residence in the new house, the issue of whether the transfer of the building of this case constitutes the non-taxation requirement of capital gains tax should be determined on the basis of the time of transfer, and the provisions of Article 15 (11) of the Enforcement Decree of the Income Tax Act of this case, which made it possible to add up the period of residence in the old house after January 1, 1991.

2. However, as long as one household possesses one house on a certain site and resides for a considerable period, if the house has been destroyed too old and constructed a new house at that place, it would be reasonable to add it to the purpose of legislation, regardless of whether there is a provision under Article 15(11)(i) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 190), and Article 15(11) of the Enforcement Decree of the Income Tax Act in the case of one house for one household under Article 5(1)(i) of the Enforcement Decree of the same Act, it would be consistent with the purpose of legislation, which is exempt from capital gains tax (see Supreme Court Decision 92Nu5713, Jul. 28, 1992). Article 15(11) of the same Enforcement Decree of the Income Tax Act is regarded as a principle provision.

3. Thus, the court below rejected the plaintiff's assertion without examining the situation where the plaintiff damaged the previous house and newly constructed the building of this case, and there is an error of law by misunderstanding the legal principles as to the scope of one house for one household non-taxable under the Income Tax Act, and misunderstanding the legal principles as to the scope of one house for one household, and misunderstanding

On the third ground for appeal

In the event that the existing building is purchased and the new building is transferred within the short time after it is cut down, the acquisition value and removal cost of the removed existing building may be included in the necessary expenses of the transferred building if it is evident that it was intended to only use the land by removing the existing building from the beginning to the beginning (see Supreme Court Decision 92Nu7399, Sept. 8, 192). However, as in this case, the acquisition value of the existing building may not be included in the necessary expenses until the time when the new building was built after the acquisition of the existing building and the building was 10 years after the acquisition of the existing building, and the new building was built and transferred after its removal. There is no reason to discuss

Therefore, the judgment of the court below on the remainder of the grounds of appeal is omitted and remanded. It is so decided as per Disposition by the assent of all participating Justices on the bench.