A. The time of transfer of assets transferred at the time of enforcement of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982) (=the date of receipt of the intermediate payment)

B. Whether the method of attack and defense, which was not asserted in the previous trial procedure, may be asserted in an appeal litigation (affirmative)

A. The time of transfer of assets transferred at the time of enforcement of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982) shall be deemed the date of receipt of the intermediate payment regardless of whether the transfer margin, the preliminary return of transfer margin or the final return of tax base, and the transfer date on the register shall not immediately be deemed the date

B. In an appeal litigation, the plaintiff may assert the means of offence and defense which were not asserted in the prior trial procedure, and the court may examine it and determine the legitimacy of administrative disposition.

A. Article 27 of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982)

Attorney Gangwon-do et al., Counsel for defendant-appellee

head of Dongjak-gu Tax Office

Seoul High Court Decision 88Gu12808 delivered on May 10, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

1. According to the reasoning of the judgment below, on September 9, 1976, the court below acknowledged the fact that the plaintiff transferred approximately 67 of the same day among the above Do-dong land to the non-party-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong land at the time of original adjudication, received the down payment on the same day, the intermediate payment on September 22, 197, and the balance on November 1, 1977. On November 7, 1976, the court below transferred approximately 100 out of the above Do-dong-dong-dong-dong land and received the down payment on the same day, the intermediate payment on December 12 of the same year, and the balance after it received on the same day from the non-party-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si.

Article 27 (1) and (2) of the Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), which was enforced at the time of transfer of each of the above land, 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 is received or received. Thus, the time of transfer of assets shall be the date of intermediate payment regardless of whether the transfer margin, the final return on the transfer margin, or the final return on the tax base, is the date of transfer, and the date of transfer on the register shall not be immediately deemed the time of transfer. Thus, the court below's decision that the time of transfer of each of the above lands

2. In addition, the court below determined that the above land was a site condition since the plaintiff removed an unauthorized building on the ground at the time of transfer of the above land at the time of transfer of the above 211-378 building site at 85.5 square meters among the above land at the time of transfer of the above Do-dong 211-378, and that the above land area of the above land is insufficient to obtain national housing construction permit only at the time of the above transfer, and that 4.99 square meters from the above land adjacent to the above land was not sufficient to obtain national housing construction permit, the above land was completed a temporary registration of transfer under the agreement to register the transfer of ownership in the name of the plaintiff after re-divisioning the above land after completion of national housing construction. Since the plaintiff acquired the above Do-dong land and completed construction with the permission of changing the form and quality of land after acquiring it, the court below determined that the above part of the transfer margin and the transfer margin of the above land should not be included in the construction cost of the above company's total transfer of the above land at the same time.

In addition, in an appeal litigation, the plaintiff can assert the means of attack and defense not asserted in the previous trial procedure, and the court may deliberate this and determine the legitimacy of administrative disposition, so there is no debate on this point.

3. Therefore, the appeal is dismissed, and all 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) Lee Jong-won (Presiding Justice)