[양도소득세부과처분취소][공1985.3.1.(747),271]
Whether Article 27 of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982) applies to the legal fiction of transfer time, etc. in case where a sales contract is mutually advantageous, after receiving a part of the price other than the down payment at the time of enforcement of the former Income Tax Act (negative)
Article 27 of the former Income Tax Act (amended by Act No. 3576, Dec. 21, 1982) provides that the time of transfer or acquisition of assets shall be the date when the relevant contract is concluded and part of the price other than the down payment shall be received or received. It is merely deemed that the time of calculating the transfer margin in the case of transfer of assets is the same as the time of calculating the transfer margin in the case of transfer of assets, and that the said time shall not be deemed the time of transfer even in the case where the sales contract is terminated after the partial payment other than the down payment is received and the transfer is not made due to the cancellation of the sales contract. Furthermore, the purport of the above provision is not to say that the date when a part of the price other than the down payment is received
Article 27 of the Income Tax Act, Article 53 of the Enforcement Decree of the Income Tax Act, and Article 27 of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982)
Plaintiff
head of Sung Dong Tax Office
Seoul High Court Decision 83Gu1055 delivered on May 2, 1984
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
We examine the grounds of appeal.
On February 28, 197, the plaintiff collected evidence of the court below and entered into a contract with the non-party 1 bank of this case to sell 227,00,000 won of the real estate to the non-party 1 and the non-party 1 to the above non-party 200 won of the purchase price of 243 square meters and 366 square meters of the building site for 3 years on the condition that the non-party 1 would pay 620,000 won of the above land in installments, and the non-party who was the owner of this real estate would have been requested to transfer it to the non-party 1 to the non-party 20,000 won of the purchase price of this case to the non-party 1. The plaintiff did not pay the non-party 20,000 won of the purchase price of this case to the non-party 1 and the non-party 1 to the above 19,000 won of the sale price of this case to the non-party 1.
The provision that "the date of transfer or acquisition of property under the main sentence of Article 27 (1) of the Income Tax Act shall be the date when the contract concerned is concluded and part of the price other than the down payment is received or shall be the date when the part of the price is received or received except the down payment in case where the assets are transferred." This provision is a provision that the revised current Income Tax Act and its Enforcement Decree shall, in principle, fix the time of transfer or acquisition as the date of liquidation of the price of the assets in question or if the sale or purchase is cancelled for any reason, and if the transfer is not made due to the cancellation of the contract, it shall not be deemed the date of transfer of assets which meet the taxation requirement of the capital gains tax, even if a part other than the down payment is received or received, in light of the legal principle that the transfer contract cannot be cancelled, and therefore, it shall not be employed unless it is a sole view that the part of the price other than the down payment is received or received as the date of the transfer of assets.
Therefore, all appeals are dismissed without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Lee Il-young (Presiding Justice)