In the case of non-taxation of capital gains, whether it is premised on the fact that a person has resided in the house once, even if the period of residence is not restricted due to unavoidable reasons prescribed in Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act, and Article 6 (4) of

The purport of Article 5 subparag. 6 (i) of the Income Tax Act, Article 15(1)3 of the Enforcement Decree of the Income Tax Act, and Article 6(4)1 of the Enforcement Decree of the same Act, which provides for capital gains not subject to income tax, shall not be imposed in cases where a resident owns one house with his family and actually resides in the same house for three years or more, and transfers it after the lapse of three years: Provided, That the resident does not be subject to a restriction on the period of his residence, but even in cases where the resident does not have actually resided in the house, on the premise that he actually resides in the house, and this legal principle likewise applies to cases where the resident fails to reside in the relevant domicile

Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 (1) 3 of the Enforcement Decree of the same Act, and Article 6 (4) of the Enforcement Rule of the same Act.

Plaintiff

The Director of Gangnam District Office

Seoul High Court Decision 90Gu8833 delivered on March 7, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The plaintiff's grounds of appeal are examined.

The court below held that the transfer of the above real estate does not constitute a transfer of one house for one household which is exempt from income tax, and that Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act, Article 6 (4) 1 of the Enforcement Decree of the same Act, and Article 6 (4) of the same Act, which provides for transfer income tax-free transfer income, does not impose income tax in cases where a resident owns one house with his family and actually resides in the house for three years or more and transfers it after the expiration of three years, but it does not impose income tax in cases where the resident meets certain requirements, but even if the resident actually resides in the house, he is presumed to have actually resided in the house. In this case, the court below's decision that the transfer of the above real estate does not constitute a transfer of one house for one household which is exempt from income tax until the plaintiff acquired the house and it cannot be viewed that the transfer of the house constitutes a transfer of the above house, in light of the above provisions of the law, and therefore, the court below's decision is justified.

Therefore, the plaintiff's appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)