One house for one household;

In case where a household has a house other than one on a given site and he has destroyed the house and reconstructed the new house at that place, the period of residence or retention shall be calculated by adding up the period of the new house when calculating the period of residence or retention.

The contents of the decision shall be the same as attached.

1. On January 20, 1992, the Defendant revoked the disposition of imposition of capital gains tax of KRW 14,175,510 and tax of KRW 2,835,100 against the Plaintiff on January 20, 1992.

1. Details of the imposition;

갑제1호증 내지 갑제10호증의 1,2의 각 기재와 증인 백ㅇㅇ의 증언에 변론의 전취지를 종합하면 다음과 같은 사실을 인정할 수 있다.

가. 원고는 1977. 12. 30. ㅇㅇ ㅇㅇ구 ㅇㅇ동 ㅇㅇ의 36 대159평방미터를 취득하고 1978. 2. 22. 그 지상에 연와조세멘와즙 2층주택 1동(이하 이 사건 종전주택 이라고 한다)을 신축하여 소유하여 오다가 1987. 11. 이 사건 종전주택이 노후되어 그대로 거주하기 어려운 상황이 되자 이를 헐고 그 지상에 벽돌조 스페니쉬 기와잇기 2층주택(이하 이 사건 주택 이라고 한다)을 신축하여 소유하다가 1990. 5. 14. 소외 김ㅇㅇ에게 이 사건 주택 및 그 대지를 양도하였으며 한편 원고는 1세대 1주택의 소유자로서 그의 주민등록표상 1977. 11. 25.부터 1980. 7. 14.까지 같은 해 9. 3.부터 1982. 7. 19. 까지, 같은 해 10. 7.부터 1987. 8. 27.까지, 그 다음날부터 1990. 6. 23.까지 위 주소지에 거주하였다.

B. On January 20, 1992, the Defendant imposed capital gains tax on the Plaintiff’s above transfer and imposed capital gains tax of KRW 14,175,510 on the Plaintiff and KRW 2,835,100 on January 20, 1992.

2. The legality of disposition.

A. The plaintiff's assertion

In light of the legislative intent of non-taxation of capital gains tax on the transfer of one house for one household, the interpretation of tax-related Acts and the principle of its application, etc., the Plaintiff’s taxation disposition of this case against the Plaintiff shall be determined by adding up the period of residence in the new and old house for three or more years, which is exempt from capital gains tax. In the case of the Plaintiff, although the period of residence and the period of retention in the instant house fall short of the respective requirements, if the period of residence and the period of retention are consistent with the period of residence in the previous house of this case, it shall be more than three years, and the period of retention shall be more than five years, and it shall constitute one house for one household which is exempt from capital gains tax. Accordingly, the Plaintiff’s taxation disposition of this case against the Plaintiff shall not be exempt.

B. Provisions of relevant statutes

Article 5 (1) 6 (i) of the Income Tax Act provides that one house for one household and its appurtenant land as prescribed by the Presidential Decree shall be exempted from income tax, and Article 15 (1) of the Enforcement Decree of the same Act provides that "one house for one household which is exempt from capital gains tax shall be owned by one household and its spouse together with their family members living together with their family members living together with their same address or same place of residence in Korea for three years or more in principle, and Article 15 (1) of the Enforcement Decree of the same Act (amended by the above amended Ordinance of the Ministry of Finance and Economy on December 31, 190) provides that where the resident proves that he is one house for five years or more under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy, the period of his residence shall not be restricted, and Article 15 (1) of the Enforcement Decree of the same Act (amended by the above amended Ordinance of the Ministry of Finance and Economy on December 31, 190) provides that the period of his residence or possession shall be summed up to the new house after 19 (1).

C. Determination

In the case of one house for one household under subparagraph 6 (i) of Article 5 of the Income Tax Act and Article 15 (1) of the Enforcement Decree of the same Act, the legislative intent of non-taxation on capital gains tax is that the resident of one household does not move his residence or transfer his house for the purpose of capital gains or speculation, but rather transfers it to another person after residing or holding the house for a long period of time is guaranteed under the tax law. Therefore, in the case where one household owns one house on a certain site, and resides in the house, and if the house was worn out and demolished it, and the new house is reconstructed at that place, the calculation of the period of residence or retention as prescribed in the above Acts and subordinate statutes must be made by adding up the period of the new house and that of the new house, and Article 15 (11) of the Enforcement Decree of the same Act is not limited to the period of residence and possession of the new house, and even before the enactment and enforcement of the above provision of the above Acts and subordinate statutes, it cannot be exempted from taxation on the income of the defendant for more than 3 years.

3. Conclusion

Thus, the plaintiff's claim seeking the revocation of the disposition of this case was unlawful, and it is reasonable to accept it, and the costs of lawsuit are assessed against the losing defendant, and it is so decided as per Disposition.