(a) Whether Article 6 (5) of the Enforcement Rule of the Income Tax Act is an exemplary provision;

(b) Whether the fact of residence needs to be recognized in order to recognize "one house for one household" even in cases where there are unavoidable reasons under Article 6 (4) 1 of the Enforcement Rule of the Income Tax Act;

A. Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act provides that "a case where there is an inevitable reason prescribed by the Ordinance of the Ministry of Finance and Economy," as one of the cases where "one house for one household which is exempt from capital gains tax," and Article 6 (4) 1 of the Enforcement Rule of the same Act provides that "in case where all of the households move out to another Si/Eup/Myeon due to school attendance, medical treatment of diseases, situations of work or business, thereby preventing them from residing at the domicile or temporary domicile for not less than three years," and Article 6 (5) provides that "the confirmation of the reason under paragraph (4) shall be based on the following documents and the certified copy of the resident registration." If it is recognized as a fact that there is no reasonable reason to treat the reason differently from the case where it is confirmed by the above documents, and therefore, Article 6 (5) of the Enforcement Rule of the same Act is merely an example of confirming the inevitable reason, and therefore, it shall not be confirmed by the certified copy of the resident registration card, etc.

B. In cases where there are unavoidable reasons provided for in Article 6(4)1 of the Enforcement Rule of the Income Tax Act, it shall be deemed that the transferor or his/her family member of the house falls under one house for one household without asking whether the transferor or his/her family member has resided in the house.

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

A.B. Supreme Court Decision 93Nu13841 delivered on January 28, 1994 (Gong1994Sang, 856). Supreme Court Decision 92Nu1298 delivered on January 19, 1993 (Gong1993Sang, 763) 92Nu16546 delivered on July 13, 1993 (Gong193Ha, 2318)

Plaintiff

Head of the Daegu Tax Office

Daegu High Court Decision 93Gu1931 delivered on April 1, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

1. Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act provides that "one house for one household which is not subject to the restriction of the residence period and is exempt from the capital gains tax under Article 5 (6) 6 (i) of the Income Tax Act" as one of the cases where "it constitutes an inevitable reason prescribed by the Ordinance of the Ministry of Finance and Economy." Article 6 (4) 1 of the Enforcement Rule of the same Act provides that "in a case where the above inevitable reason is confirmed by the above documents and where all households move out to another Si/Eup/Myeon due to the conditions of school attendance, disease care, work or business, and it is impossible to reside in the above address or residence for three or more years." Article 6 (5) of the above Rule provides that "The confirmation of the reason under paragraph (4) of the same Article shall be based on the following documents and the certified copy of the resident registration card". If it is recognized that the above inevitable reason is true, the provision of Article 6 (5) of the above Rule is merely one way to confirm the above inevitable reason, and it shall not be confirmed by the certified copy of the above Rules.

In light of the relevant evidence and the above legal principles, the court below recognized the fact that all of the plaintiff and his family members were removed from the Gyeong-gun's workplace, and therefore, it is just to determine that the housing of this case constitutes "one house for one household" under Article 15 (1) 3 of the Enforcement Decree of the above Act and Article 6 (4) 1 of the Enforcement Decree of the above Act, since the plaintiff and his family members were not residing for three or more years in the house subject to the transfer income tax of this case due to the plaintiff's work situation. The judgment of the court below is not different from the plaintiff's certified copy of the resident registration. The above judgment below did not err in the misapprehension of legal principles, such as theory of lawsuit, etc.

2. If there are unavoidable reasons stipulated in Article 6 (4) 1 of the Enforcement Rule of the Income Tax Act, the house of this case shall be deemed as falling under the "one house for one household" without asking whether the transferor or his family has resided in the house (see, e.g., Supreme Court en banc Order 92Nu12988 delivered on Jan. 19, 193 and Supreme Court Decision 92Nu16546 delivered on Jul. 13, 1993). If all of the plaintiff and their family members were to move out to the boundary of Seongbuk-gun in terms of work conditions of the plaintiff, regardless of whether the plaintiff and their family members were residing in the house of this case, the house of this case shall be deemed as "one house for one household" under Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act and Article 6 (4) 1 of the Enforcement Rule of the same Act, and therefore, it shall not affect the conclusion of the judgment below that the plaintiff's family members also resided in the house of this case.

3. Therefore, the 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 Cho Chang-tae (Presiding Justice)