The meaning of inevitable reasons for not being restricted from residing period of one house for one household exempt from capital gains tax;

Article 15 (1) 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) where there are unavoidable reasons prescribed by the Ordinance of the Ministry of Finance and Economy in Article 15 (1) 3 of the former Enforcement Decree of the Income Tax Act refers to cases where all households move out to another Si/Eup/Myeon for not less than three years and they are unable to reside for not less than three years due to a reason that occurred after the acquisition of a house. If all households have acquired a house while they anticipated that they would move out to a different Si/Eup/Myeon

Article 5 subparagraph 6 (i) (see current Article 89 subparagraph 3) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), Article 15 (1) 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), Article 6 (4) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995)

Plaintiff

Head of the tax office

Seoul High Court Decision 94Gu36249 delivered on April 11, 1995

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged that the company working for the plaintiff purchased the apartment of this case during his overseas service under the order of overseas service from the company in which the plaintiff was employed, and that the family was unable to move into the apartment of this case immediately on the wind that he moved into a foreign country according to the workplace. The plaintiff did not reside in the apartment of this case by performing overseas service during the retention period of the apartment of this case. Thus, the court below determined that the income from the transfer of the apartment of this case becomes

Article 5 (1) 6 (i) of the Income Tax Act provides that income tax shall not be imposed on the transfer of one house for one household. Article 15 (1) 6 (i) of the Enforcement Decree of the same Act provides that "one house for one household shall be owned by one household consisting of the resident and his spouse together with his family members living together with them at the same address or same place of residence for not less than 3 years" and Article 6 (4) 3 of the Enforcement Decree of the same Act provides that "it shall be cases where there are unavoidable reasons prescribed by Ordinance of the Ministry of Finance and Economy under Article 15 (1) 3 of the Enforcement Decree of the same Act for exceptional reasons not subject to the restriction of the period of residence." Article 6 (1) 3 of the same Act provides that "it shall not be residing at the relevant address or residence for not less than 3 years due to the reasons falling under any of the following subparagraphs." Article 15 (1) 1 of the Enforcement Decree of the same Act provides that if the whole of the houses acquired by the Seoul Special Metropolitan City (including a Metropolitan City and an Eup) and an Eup due to move-out.

Even according to the reasoning of the judgment of the court below, the plaintiff could not reside in the apartment of this case under the circumstances of service and acquired it. Thus, it cannot be said that the plaintiff could not reside in the apartment of this case for not less than 3 years due to unavoidable reasons under the above provision.

Nevertheless, the court below's decision that the transfer of this case constitutes non-taxation cannot be erroneous in the misunderstanding of legal principles as to one house for one household, and such misunderstanding of legal principles was affected by the judgment, and therefore, it is reasonable to point this out.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-soo (Presiding Justice)