공동상속주택의 세대 구성 요건 및 비과세 적용에 대한 법적 검토와 개선 방안- 대법원 2023. 12. 21. 선고 2023두53799 판결을 중심으로 -

Abstract

This study examines whether the jointly inherited house falls under the ‘joint inheritance house’ under Article 155 (3) of the former Enforcement Decree of the Income Tax Act (hereinafter referred to as the ‘Enforcement Decree of the Income Tax Act’) with the heir forming a first household with the heir. The target judgment dealt with the scope of the ‘joint inheritance house’ and its application requirements in the interpretation and application of the special provisions for non-taxation of one household and one house, and ruled that the house jointly inherited by the heir and the heir did not fall under the relevant provisions at the time of commencement of inheritance. This means that if the heir forms a first household with the heir, even the inherited house is not recognized as a joint inheritance house, and it has great legal significance in that tax exemption is not applied. However, this study points out that the current Income Tax Act (hereinafter referred to as the Income Tax Act) has a gap with social reality by analyzing related issues from the legal and social aspects as a result of the target judgment. In particular, the ambiguity of the concept of ‘first generation’ reveals a limit that does not reflect various forms of family composition. The target judgment is based on the text of Article 155 (3) of the former Income Tax Act and the purpose of legislation. However, it is difficult for taxpayers to easily understand the premise that the heir and the predecessor must form separate generations, as in the target judgment, through the explicit expression of the provision itself. We would like to review these points through the target judgment and discuss future legal and institutional improvement directions.