(a) The purport of Article 15(1)2 of the Enforcement Decree of the Income Tax Act which does not impose income tax on the income accruing from the transfer of “one house for one household”

(b) Whether the acquisition of another house after the acquisition date of the house in question is not all or it is necessary to hold another house for at least five years with the house in question in order to be eligible for exemption from capital gains tax because the house, which is the transferred house, falls under “one house for one household” (negative)

(c) Whether Article 6 (3) 2 of the Enforcement Rule of the Income Tax Act (amended by the Act No. 1010, Jan. 2, 201);

D. Whether the transferor of a house must have resided in the house in order to be exempted from capital gains tax because it falls under “one house for one household” even in extenuating circumstances prescribed in Article 6(4)1 of the Enforcement Rule of the same Act (negative)

A. The purport of not imposing the income tax on the income accruing from the transfer of “one house for one household” is to ensure the stability of the residential life of the people and the freedom of their residence by not imposing the income tax on the capital gains in certain cases where it can be deemed that the transfer of one house owned in Korea by one household is not a transfer income, or that it is not a temporary residence or ownership for the purpose of speculation, and thus, it is intended to guarantee the freedom of their residence stability and the movement of residence.

B. In order to apply the “one house for one household” as stipulated in Article 15(1)2 of the Enforcement Decree of the Income Tax Act to the “one house for one household” which is the transferred house, the period of possession of the house concerned is not less than five years and is not less than five years, and it is not sufficient that the household composed of the transferor at the time of transfer has acquired another house after the acquisition date of the house concerned, or that there is no total fact of acquiring another house after the acquisition date of the house concerned, or that there is no fact of owning another house for 5 years with the house concerned, and the issue of whether the transferred house constitutes “one

C. Article 6 (3) 2 of the Enforcement Rule of the Income Tax Act, which provides that the ownership of a house other than the house transferred by the certified copy of the resident registration card or by the certified copy of the land or house ledger of the resident's domicile after the date of acquisition of the transferred house, shall be confirmed to be nonexistent. Article 15 (1) 2 of the Enforcement Decree of the Income Tax Act, which provides that the method of proving "one house for one household" shall be within the scope specified and delegated by the mother law to prove the matters that are not prescribed as the requirement for "one house for one household" under Article 15 (1) 2 of the Enforcement Decree of the same Act, shall be deemed to have reduced the scope of non-taxation subject to income tax under Article 15 (1) 2 of the same Act. Thus, the provision of Article 6 (3) 2 of the Enforcement Rule of the same Act shall not be effective since it expanded the scope of tax liability imposed by the mother corporation beyond the limit delegated by Article 15 (1) 2

D. Article 15(1)3 of the Enforcement Decree of the same Act provides that "it shall not be subject to the restriction on the residence period stipulated in the main sentence of Article 15(1)3 of the same Act and shall be one of the cases where "one house for one household" is "one house for one household," and accordingly, Article 6(4)1 of the Enforcement Decree of the same Act provides that "it shall not be subject to the restriction on the residence period stipulated in the main sentence of Article 15(1)3 of the same Act, where all the households move out to another Si/Eup/Myeon due to school attendance, medical treatment for diseases, or circumstances of work or business, and it shall not be able to reside in the relevant domicile or residence for 3 years or longer, and where there are such unavoidable reasons, it shall be interpreted that the transferor of the house falls under "one house for one household" without asking whether the transferor of the house has resided

[Dissenting Opinion]

The proviso of Article 15 (1) of the Enforcement Decree of the Income Tax Act provides that "one house for one household" shall not be subject to the restriction of the period of residence, and where the transferor of a house falls under "one house for three years or more" in subparagraph 3 of Article 15 (1) of the Enforcement Decree of the Income Tax Act provides that "it shall not be deemed that "one house for one household" shall not be subject to the restriction of the period of residence stipulated in Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act unless the reason is included in the grounds for restriction of the Ordinance of the Ministry of Finance and Economy." Article 6 (4) of the Enforcement Rule of the same Act provides that "Where the transferor of a house is unable to reside in the relevant address or residence for three years or more due to reasons falling under any of the following subparagraphs," and subparagraph 1 provides that "it shall be inevitable cases where all members of a household move to another Si/Eup/Myeon due to school attendance, medical treatment of diseases, situations of work or business," and therefore, it shall be interpreted that the provisions of Article 15 (15) of the Enforcement Decree of the Act shall be interpreted.

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

A. Supreme Court Decision 92Nu5713 delivered on July 28, 1992 (Gong1992,2690) b. Supreme Court Decision 83Nu446 delivered on March 27, 1984 (Gong1984,734) 87Nu526 delivered on October 13, 1987 (Gong1987,173) (amended by Supreme Court Decision 91Nu12523 delivered on April 28, 1992 (Gong192,1763) (amended by Supreme Court Decision 91Nu9817 delivered on March 10, 1992) (Gong192,131), 92Nu5713 delivered on July 28, 1992 (Gong192, 192; 193Nu139389 delivered on September 29, 192)

[Defendant-Appellee] Plaintiff 1 et al.

The head of Yangcheon Tax Office

Seoul High Court Decision 90Gu19499 delivered on July 21, 1992

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

1. Judgment on the first ground for appeal by the Plaintiff’s attorney

A. The court below rejected the Plaintiff’s assertion that the instant taxation was unlawful on the ground that the Plaintiff acquired the instant real estate (multi-family housing) from Hanyang Co., Ltd. on December 3, 1982 and sold KRW 29,713,000 to the Nonparty on May 2, 1989, the Defendant issued the instant taxation that imposed and imposed transfer income tax and defense tax on the Plaintiff as of February 16, 1990. Since the instant real estate constitutes one house for one household and its transfer income tax is non-taxable income, it is apparent that the Plaintiff owned the instant real estate for five years or more, but it is true that the Plaintiff had already acquired another apartment between the date of acquisition of February 14, 1986 and the date of transfer of the instant real estate on May 6, 1987.

B. Article 5 subparagraph 6 (i) of the Income Tax Act (hereinafter referred to as the “Act”) provides that the income accruing from the transfer of one house for one household as prescribed by the Presidential Decree (excluding the high-class housing prescribed by the Presidential Decree) shall be non-taxable income. Article 15 (1) of the former Enforcement Decree of the Income Tax Act (hereinafter referred to as the “Decree”) provides that “one house for one household” in Article 5 subparagraph 6 (i) of the Act provides that the resident and his spouse shall own one house in the Republic of Korea with his family members living together with them at the same address or same place of residence and shall be deemed to have resided in the Republic of Korea for not less than 3 years: Provided, That in cases falling under any of the following subparagraphs, the period of residence shall not be restricted in cases where the resident has been more than 5 years, and the resident shall again prove that he is one house for one household after his transfer from his residence in accordance with the provisions of Article 15 (2) of the former Enforcement Decree of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 15).

As such, the purport of not imposing income tax on the income accruing from the transfer of one house for one household is that a house is the basis of a citizen’s residential life. Thus, if it can be deemed that a household’s transfer of one house owned in Korea is not a temporary residence or transfer for the purpose of acquiring capital gains tax, or speculation, the transfer income tax is not imposed, thereby ensuring the stable residential life and the freedom of movement of residence for the citizen (see, e.g., Supreme Court Decision 92Nu5713, Jul. 28, 1992). In order to interpret the provisions of Article 15(1)2 of the Decree in light of the legislative purpose of the above, “one house for one household”, which provides for “one house for five years or more,” and it is sufficient that the household which constitutes a transferor at the time of the transfer, owns only one house within 5 years, and further, it cannot be deemed that it constitutes a “one house for 15 years or more,” and it constitutes a “one house for 3 years or more, 4 years, and it is not necessary to establish another house.

Therefore, Article 6 (3) 2 of the "Rules" provides that "one house for one household" shall be confirmed to have no ownership of a house other than the house transferred by the certified copy of the resident registration card or the certified copy of the land/family ledger of the resident's domicile after the date of acquisition of the transferred house, and Article 15 (1) 2 of the "Decree" provides that "one house for one household" shall be proved beyond the scope specifically determined and delegated by the mother law, and it shall be deemed that the scope of the non-taxation subject to income tax under Article 15 (1) 2 of the Decree is reduced. Thus, the provision of Article 6 (3) 2 of the "Rules" expands the scope of the liability to pay income tax exceeding the limit delegated by Article 15 (1) 2 of the "Ordinance" of the parent corporation, and all citizens shall have no effect as it violates the principle of no taxation without law.

The previous Supreme Court Decision 91Nu12523 delivered on April 28, 1992 held that Article 6 (3) 2 of the "Rules" is effective, and the opinion against it is modified by this decision.

C. If the facts are as determined by the court below, it is clear that the period for which the Plaintiff owned the instant real estate has been more than five years, and if the household constituting the Plaintiff was the only house owned in Korea at the time of transfer, the income accrued from the transfer of the instant real estate shall be deemed to meet the non-taxation requirements under Article 15(1)2 of the Decree.

Nevertheless, the court below rejected the plaintiff's assertion that the income accrued from the transfer of the real estate of this case satisfies the non-taxation requirements under Article 15 (1) 2 of the "Decree" solely on the ground that the plaintiff owned another house between the date of acquisition and the date of transfer of the real estate of this case. Thus, the court below did not err by misapprehending the legal principles on non-taxation requirements under Article 15 (1) 2 of the "One House for One Household" and it is obvious that such illegality has affected the judgment. Thus, there is a reason to point

2. Determination on the ground of appeal No. 2

A. The court below rejected the plaintiff's assertion that the transfer of the real estate in this case constitutes a transfer of "one house for one household" under Article 15 (1) 3 of the Decree and Article 6 (4) 1 of the Rules, even though the period in which the plaintiff had resided in the real estate in this case after the transfer of another apartment after the transfer of the real estate in this case is less than three years, the plaintiff's assertion that the transfer of the real estate in this case constitutes a transfer of "one house for one household" is non-taxable income. As to the plaintiff's assertion that the transfer of the real estate in this case constitutes a transfer of "one house for one household", the court below rejected the plaintiff

B. Article 15(1)3 of the Decree provides that "a house for one household" shall not be subject to the restriction on the period of residence stipulated in the main sentence of Article 15(1)3 of the Decree and shall be one of the cases where "one house for one household" is "one house for one household," and Article 6(4)1 of the Rules provides that where all the households move out to another Si/Eup/Myeon due to school attendance, medical treatment for diseases, situations of work or business, and they are unable to reside in the relevant address or domicile for three or more years, it shall be prescribed as one of the inevitable reasons under Article 15(1)3 of the Decree. In the event of such unavoidable reasons, it shall be interpreted that the transferor of the house falls under "one house for one household" without asking whether the transferor of the house has resided in the house, and it shall be interpreted that income tax shall not be imposed on the income accruing from the transfer of the house. The reasons are as follows.

First, while the proviso of Article 15(1) of the Decree provides that "the period of residence shall not be restricted," this provision shall be interpreted to include not only the case where the period of residence is less than three years, but also the case where the period of residence is less than three years, i.e., the case where there is no fact that the person has resided in the house in question. In particular, in the case of Article 15(1)1 and 2 of the Decree, it is clear in the provision of the law that the issue is whether the person has resided in the house in question is whether or not he has actually resided in the house in question (see Supreme Court Decision 91Nu9817 delivered on March 10, 1992), and subparagraph 3 of the same Article, there is no reason to interpret otherwise.

Second, if it is interpreted that there is an inevitable reason falling under Article 6 (4) 1 of the Rule, even if there is an inevitable reason, it should be interpreted that the person who acquired the apartment should have resided in the house concerned, it is unfair to avoid receiving non-taxation benefits as "one house for one household" in the case where there is such inevitable reason (e.g., where the person who acquired the apartment has to move in to another area due to the unavoidable reason between the fact that the apartment has not been completed and the apartment has not been built, etc.).

Therefore, the opinion that held that even in the case of an inevitable reason falling under Article 6 (4) 1 of the Regulations, even if the resident has actually resided in the relevant house, it shall be interpreted as falling under the transfer of "one house for one household" that is exempt from the transfer of the house, by taking account of the opposing opinion of the Supreme Court Decision 91Nu2847 delivered on January 21, 1992 and of the opposing opinion of the Supreme Court Decision 91Nu936 delivered on March 10, 192, it shall be amended by this judgment.

C. Nevertheless, the court below rejected the plaintiff's assertion on the ground that the plaintiff did not actually reside in the real estate of this case without examining and determining whether the plaintiff was unable to reside in the real estate of this case due to unavoidable reasons under Article 6 (4) 1 of the above Rules. The court below erred in interpreting Article 15 (1) 3 of the Decree and Article 6 (4) 1 of the Rules, and it is obvious that such illegality affected the conclusion of the judgment. Thus, there is a reason to point this out.

3. Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for a new trial and determination. This decision is delivered with the assent of all Justices who reviewed except for the following dissenting opinions by Justice Choi Jae-ho, Justice Park Jong-dong, Justice Kim Yong-ju, and Justice Kim Yong-sik as to the judgment on the second ground of appeal.

4. Dissenting Opinion by Justice Choi Jae-ho, Justice Park Jae-dong, Justice Kim Yong-ju, and Justice Kim Yong-sik.

A. Under the principle of no taxation without law, extended interpretation or analogical application is not allowed because the laws and regulations concerning non-taxation requirements are strictly interpreted (see, e.g., Supreme Court Decision 83Nu213, Dec. 27, 1983; Supreme Court Decision 86Nu92, May 26, 1987). Article 15(1) proviso of the "Ordinance" provides that "one house for one household" shall not be subject to the restriction of the period of residence and shall be one of the cases stipulated in subparagraph 3, which "it is inevitable circumstances prescribed by the Ordinance of the Ministry of Finance and Economy," and it shall be interpreted that the transferor of the house shall not reside in the house for three or more years without any inevitable reason, unless the transferor of the house is included in the reasons prescribed by the Ordinance of the Ministry of Finance and Economy, and it shall not be deemed that the apartment house falls under "one apartment house for one household" which is necessarily subject to the restriction of the period of residence prescribed by Article 15(1)3 of the "Ordinance," and it shall not be the transferor of the apartment house to another area.

B. Article 6(4) of the Rules provides that "a case where all the households move out to another Si/Eup/Myeon due to the attendance at school, medical treatment for diseases, circumstances of service or business" means a case where a household which constitutes a resident has resided in the relevant domicile or residence for reasons falling under any of the following subparagraphs, and subparagraph 1 of Article 6 provides that "a case where all the households move out to another Si/Eup/Myeon for the purpose of attending school, receiving medical treatment for diseases, or under the circumstances of business." In this context, in relation to the contents of the main sentence of Article 15(1) of the Decree, there is no room for doubt in the literal interpretation that it means a case where all the members of the households living together with the household have resided in the relevant house who have resided in the said domicile or residence. Therefore, Article 6(4)1 of the Rules provides that "the unavoidable reasons for the failure of the household to move out to the said house with the period of residence for three years can only be interpreted as a provision

C. For the foregoing reasons, we cannot agree with the Majority Opinion that, in cases where there are unavoidable reasons as stipulated in Article 6(4)1 of the “Rules,” the transferor of a house shall be deemed to fall under “one house for one household” regardless of whether the transferor of the house had resided in the house in question.

Therefore, I think it is not necessary to modify the opinion of this Court Decision 91Nu2847 delivered on January 21, 1992 and 91Nu9336 delivered on March 10, 1992 and it should be maintained as it is.