[양도소득세등부과처분취소][공1991.7.1,(899),1664]
(a) The case holding that in a land sales contract where only the down payment was received at the time of the enforcement of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), and the transfer was paid without intermediate payment, the time of transfer is the date on which the remainder payment under the above contract is received even if the principal registration of provisional registration was made for the security at the time of the delay in payment of the remainder payment was received from the occupant of the house newly constructed on the above land, and the transfer registration was made again after receiving compensation for damages from the occupant
B. Extinctive prescription of the right to impose and collect capital gains tax, etc. due to the transfer of land in the above paragraph (a)
A. The case holding that in the case where a housing construction company and a land sales contract entered into with a housing construction company at the time of the enforcement of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), only a down payment was received and the remaining amount was paid without intermediate payment, but a provisional registration was made as a collateral, but the provisional registration was made as a collateral, when the payment was delayed, and the above company discontinued its business, it was paid damages from the residents of a newly constructed house on the above land and completed the registration of transfer again in the above company, the time of transfer of the above land is the date on
B. In the case of paragraph (a) above, the right to impose and collect capital gains tax, etc. from the transfer of the land shall expire upon the lapse of five years from the day following the deadline for final return.
A.B. Article 27(1)(b) of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1988)
(b) Supreme Court Decision 91Nu230 delivered on May 10, 1991 (dong) b. 87Nu50 delivered on May 26, 1987
Plaintiff-Appellant Kim Jin-jin et al., Counsel for the plaintiff-appellant
The director of the tax office
Seoul High Court Decision 89Gu15545 delivered on November 20, 1990
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
As to the ground of appeal by Defendant Litigation Performers
According to the reasoning of the judgment below, the court below found the following facts based on evidence. In other words, the plaintiff, the non-party 1 and the non-party 2 sold the land of this case to the non-party 1,88 million won on June 21, 1982 to the non-party 1, the non-party 2, the non-party 1, and the non-party 2, who agreed to receive down payment 30 million won on that day, and pay 15 million won to the non-party 1,58 million won without an intermediate payment. The plaintiff et al., on the above land, made a provisional registration to secure the right to claim ownership transfer on the following day in the name of the above company for the purpose of securing the payment of the remaining price, and made a provisional registration to secure the right to claim ownership transfer in the name of the plaintiff 2, the non-party 1, the non-party 2, etc., again did not pay the remaining price to the non-party 1, 1982.
Furthermore, the court below determined that pursuant to Article 27 (1) of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), which was enforced on August 22, 1982, the date of transfer of the land of this case shall be the date on which the plaintiff receives any balance under the sales contract, and accordingly, the right to impose and collect capital gains tax, etc. from the transfer of the land of this case shall be extinguished due to the completion of the statute of limitations from June 1, 1983, which was five years after the following day after the date of the final return on the tax base of this case.
On the other hand, the court below held that the plaintiff et al. returned the name of the owner transferred to the non-party company in the name of the plaintiff et al. over two times on October 26, 1982 and February 26, 1983 to the non-party company was only a provisional registration that was established for securing the payment of the remainder amount, and it cannot be deemed that the plaintiff et al. cancelled the existing sales contract between the plaintiff and the non-party company, and the new sales contract was concluded and the new sales contract was concluded and the payment date was newly
The above fact-finding by the court below is acceptable and it is not erroneous in the rules of evidence or incomplete hearing, such as the theory of litigation.
In addition, according to Article 27 (1) of the former Income Tax Act, since the date of receipt of nominal money, such as intermediate payment, other than down payment, becomes the time of transfer, it is impossible for the tax authority to change the fact that the tax requirement is complete to the extent that the transfer of the real estate is able to impose tax on income from the transfer of the real estate, unless the transfer becomes impossible due to reasons such as cancellation of the contract, etc.
The judgment of the court below is not erroneous in the misapprehension of legal principles as to extinctive prescription, such as theory of lawsuit. There is no reason to discuss.
For these reasons, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Sang-won (Presiding Justice)