Whether it constitutes a temporary two house exempt from capital gains tax if the old house is transferred within one year after the acquisition of a new house.

Article 6 (1) of the Enforcement Rule of the Income Tax Act provides that even if two houses for one household are temporarily located, if the purpose of acquiring another house is to move to the dwelling, and if the previous house is transferred within a certain period from the date of acquisition of another house, income tax shall not be imposed on the income accrued therefrom. Since the Plaintiff et al. acquired a new house for the purpose of moving to the dwelling and actually moved to the dwelling within one year from the date of acquisition of the previous house,

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

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

1. Details of the instant taxation disposition

The following facts are not disputed between the parties, or there is no other evidence to determine the above recognition, in full view of each of the descriptions in subparagraph 1, 1, 2, 3 through 5, 3, 1, 9-1, 2, 1, 1, 1 through 8, and 3, 1, 2, 1, 1 through 8, and 5, respectively.

A. On December 18, 1985, the Plaintiff acquired 202 square meters of the site of ○○○○○-dong ○○○○○○○○○-dong, and 192.72 square meters of the house on its ground (hereinafter “former house”). On December 19, 1990, the Plaintiff acquired ○○○-dong ○○○-dong ○○○○-dong ○○○○○ apartment ○○○-dong ○○○○ ○○ ○○ dong ○○ ○○ ○○ dong (hereinafter “new house”) and transferred the old house on May 24, 191.

B. From March 19, 1987 to March 9, 1992, the plaintiff and his family members resided in the old house and resided in the old house from March 19, 1987 to March 9, 1992, and thereafter, they resided in the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which the plaintiff leased, and have moved to the new house on January 12, 1993. (The plaintiff, only on his resident registration, was living in the ○○○○○○○○○○○○○○, such as the ○○○○○○○○○○○○○○○○○○, which was newly constructed on his own, and resided in the new house on January 16, 1993. However, this is recognized that the plaintiff and his family members were issued various documents on the ground as mentioned above.

C. Accordingly, on December 16, 1992, the Defendant: (a) the former house transferred by the Plaintiff was held for five years or more; (b) even if the former house was transferred within one year from the date of transfer to the second house for one household; and (c) even if the former house was transferred within one year from the date of transfer to the former house, the Defendant did not reside in the new house within one year from the date of transfer; and accordingly, (d) recognized that it does not constitute a temporary two house for the relocation of residence, and thus, (e) imposed capital gains tax amounting to KRW 128,168,99

2. Whether the instant taxation disposition is legitimate

A. The parties' assertion

As to the Defendant’s assertion that the instant taxation disposition was lawful in light of the details of the instant taxation disposition and the relevant laws and regulations, the Plaintiff temporarily acquired a new house for the purpose of moving a house for the purpose of moving a house, but the Plaintiff transferred the old house within one year, and thus, the transfer income tax on gains from the transfer of the old house constitutes one house for one household and thus is exempt from taxation. However, the Defendant applied the provision that the transfer of the former house to a new house within one year under Article 6(1) of the Enforcement Decree and Enforcement Rule of the Income Tax Act, and issued the instant taxation disposition against the Plaintiff by applying the provision that the transfer of the house to a new house to a new house within one year. This provision without any delegation from the mother’s law by arbitrarily adding the said non-taxation requirements, which are not delegated by the mother law, thereby infringing the

B. Determination of party members

(1) According to the relevant laws and regulations, Article 5 subparag. 6 (i) of the Income Tax Act provides that one house for one household as determined by the Presidential Decree (excluding the high-class house as determined by the Presidential Decree) and the appurtenant land shall not be subject to the transfer income tax on the income accruing from a transfer of land within the area calculated by multiplying the area of the land on which the building is built by the ratio as determined by the Presidential Decree by region. Article 15(1) and 15(2) of the Enforcement Decree of the Income Tax Act provides that one house for one household under Article 5 subparag. 6 (i) of the Income Tax Act shall be sufficient in the case of a household with the retention period of not less than 5 years, which is owned by the transferor at the time of the transfer, and shall not be deemed to require all the fact that the house was owned by another house after the acquisition date of the house, or that the house was owned by another person for the same purpose as at the time of the transfer of the previous house is not subject to the transfer of the house within 197 years.

(2) We review the case.

First of all, in light of the above laws and regulations as seen in Article 6 (1) of the Enforcement Rule, as alleged by the plaintiff, the transfer income tax shall be imposed on the transfer margin accruing from the transfer of assets. However, the purpose of not imposing transfer income tax on the transfer margin accruing from the transfer of one house for one household is the basis of a citizen's residential life. Thus, in certain cases where transferring one house owned by one household is deemed not to be a temporary residence or transfer for the purpose of acquiring capital gains tax or speculation, it is intended to guarantee the stability of citizens' residential life and the freedom of their residence by failing to impose income tax on the transfer margin. Thus, Article 15 (1) of the Enforcement Rule provides the scope of one house for one household as stipulated in Article 5 of the above Act, and Article 6 (1) of the Enforcement Rule does not impose the above income tax on the transfer margin accruing from the transfer of assets again, because it does not violate the above provision without any grounds for invalidation of the Enforcement Rule, since it does not constitute a violation of the principle of no taxation without law.

Then, we examine whether the previous house transferred by the plaintiff satisfies the above requirements under the above provision of the Enforcement Rule at the time of transfer. Since the plaintiff acquired the previous house at the time of transfer and possessed it for not less than 3 years, and the plaintiff had already acquired a new house as seen earlier at the time of transfer of the old house, but the fact that the previous house was transferred within 1 year from the date of acquisition of the new house is acknowledged as above. However, there is no evidence to acknowledge it as to whether the plaintiff and the household of the plaintiff acquired a new house for the purpose of transfer of the house within 1 year from the date of transfer of the house and actually transferred the house within the above provision of the above Enforcement Rule, the plaintiff did not have any inevitable reason for transfer of the house within the above period. Thus, the plaintiff's assertion that the previous house was not subject to non-taxation for the plaintiff's transfer of the house within the above period because it does not constitute a non-taxation requirement under the premise that the plaintiff's new house was not subject to the transfer of the house within the above period of time. Therefore, it is unlawful for the plaintiff's non-taxation of the new house.

3. Conclusion

Therefore, since the taxation disposition against the plaintiff in this case by the defendant is legitimate, the plaintiff's claim for revocation is dismissed as without merit, and the costs of the lawsuit are assessed against the plaintiff as the losing party.

may 27, 1994