Where one house for one household, which is subject to non-taxation of capital gains tax, is newly constructed a sporadic and multi-household house, the criteria for determining non-taxation scope

Where the previous house is removed and a new building is built on the ground, it is clear that it is excluded from the scope of one house for one household if it is not a new building, and even if the new building is a house, it is included in the residence period or retention period of the new and new house, if it constitutes a so-called combined house under Article 15(3) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 14467 of Dec. 31, 1994), the reason that the previous house was exempt from one house for one household cannot be treated as a non-taxable house immediately on the sole ground that the previous house is exempt from taxation, unless it is recognized to meet the non-taxation requirements as prescribed by the above provision.

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), (9), and (11) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) (see current Article 154 (1), (3), (7), and (8))

Supreme Court Decision 93Nu20764 delivered on April 29, 1994 (Gong1994Sang, 1725) Supreme Court Decision 93Nu21859 delivered on May 24, 1994 (the same purport) and Supreme Court Decision 96Nu4596 delivered on August 22, 1997 (the same purport), Supreme Court Decision 97Nu3712 delivered on August 26, 1997 (Gong197Ha, 2956)

Plaintiff

Head of Sungbuk Tax Office

Seoul High Court Decision 96Gu28563 delivered on February 20, 1997

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

The grounds of appeal are examined.

According to the reasoning of the lower judgment, the lower court: (a) acquired the ownership of the building site of Seongbuk-gu Seoul ( Address omitted); (b) 96m2 and 156.1m2, Dong-dong (hereinafter “instant building site and Gu housing”) on December 2, 1986; and (c) removed the Gu housing on June 6, 191; and (d) determined that the Plaintiff’s new housing area of 1/66m2, 16.71m2, 54m2, 16.7m2, 166m2, 66m2, and 9m2, 197m2, 6m2, and 197m2, 6m2, and 197m2, 6m2, 197m2, and 196m2, 3m2, and 196m2, 3m2, 194, 3m2, and 196m2, of the instant housing site.

However, if the previous house is removed and a new building is newly constructed on the ground, it is clear that it is excluded from the scope of one house for one household if the new building is not a house, and even if the new building is a house, it is included in the residence period or retention period of the new and old house, if it constitutes a house for the so-called concurrent use as prescribed by Article 15(3) of the Decree, it cannot be treated as a non-taxation for the previous house just on the ground that the previous house was non-taxable as a house for one household, unless it is recognized as satisfying the requirements for non-taxation as prescribed by the above provision (see, e.g., Supreme Court Decisions 93Nu20764, Apr. 29, 1994; 93Nu21859, May 24, 1994).

According to the records, even if the plaintiff's assertion is based on the plaintiff's assertion, the plaintiff used only the first floor of the new house from the construction of the new house to the transfer of the new house, and the remaining second floor and the second floor have been leased. Thus, the new house can be viewed as a concurrent house as provided in Article 15 (3) of the Decree. In addition, if the area of the first floor used by the plaintiff or his family in the new house is smaller than the area of the remaining part of the building, the part corresponding to the ratio of the remaining part, excluding the residential area of the plaintiff or his family, to the area of the remaining part of the new house from the total area of the new house among the land in this case is subject to capital gains tax as provided in the above Enforcement Decree. Thus, the judgment below based on the purport of objection is erroneous in the misapprehension of legal principles as to the non-taxation scope of one house for one household in the multi-family house, and it is obvious that this affected the judgment.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)