The case reversing the judgment of the court below that found the liquidation date under Article 53 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564 of Dec. 31, 1988) as the date of payment of ownership transfer registration not the remainder date

The case reversing the judgment of the court below that found the liquidation date under Article 53 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564 of Dec. 31, 198) as the date of payment of ownership transfer registration not the remainder date.

Article 53 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564 of Dec. 31, 198)

[Judgment of the court below]

Head of Yongsan Tax Office

Seoul High Court Decision 92Gu37071 delivered on May 11, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

The court below acknowledged that when the plaintiff purchased the real estate of this case from the non-party on September 10, 1986, 40 million won on the day the down payment was paid to the non-party 4 million won on the day, and that the non-party 20 million won out of the remainder payment was paid to the plaintiff as a bank debt equivalent to the above non-party 16 million won on October 13 of the same year. The plaintiff thereafter paid 16 million won on the payment date of the remainder payment pursuant to the agreement and received only provisional registration for preserving the right to claim ownership transfer on the next day on July 13, 1988, and that the plaintiff received the registration of ownership transfer on September 1, 198 after paying the above bank debt and then revoked the registration of ownership transfer on September 1, 198. If factual relations are related, it is reasonable to view that the date of liquidation of the plaintiff's acquisition of the real estate of this case is the date of final payment of the bank debt of this case to be paid on September 18, 198198.

Article 53(1) of the Enforcement Decree of the Income Tax Act provides, “The time of acquisition and time of transfer under Article 27 of the Act shall be the date of liquidation of the price of the relevant asset except for the following cases.” In this case where the issue is whether the ownership period of three years, which is a non-taxation requirement, is the transfer of one house for one household, is at the time of original adjudication, if the factual relations are the same as the time of original adjudication, the plaintiff shall be deemed to have paid all the price by paying any balance remaining after deducting his obligation to the bank that was borne by the plaintiff from the above purchase price. Thus, the date of liquidation of the balance of the acquired real estate by the plaintiff shall be the date when the plaintiff paid

Nevertheless, the court below erred by misapprehending the legal principles on the settlement of the price under Article 53 (1) of the Enforcement Decree of the Income Tax Act when the registration of ownership transfer has been made in the future of the plaintiff, thereby leading to the erroneous determination of the facts. This error has affected the conclusion of the judgment. The reason for this argument is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-ju (Presiding Justice)