A. Examples of Article 4 (3) of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982)

(b) Whether an investment in kind in a union constitutes “transfer” of capital gains tax, and the time of the transfer of such assets;

(c) Where Article 115(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9698, Dec. 31, 1979) applies;

A. The main text of Article 4(3) of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982) provides that the concept of transfer in capital gains is actually transferred for price regardless of the registration or record of the assets, and it is interpreted that the assets are actually transferred for price as an example of sale, exchange, or investment in kind in a corporation as an example of the transfer of the assets. Thus, even if the assets are actually transferred for price due to reasons other than sale, exchange, or investment in kind in a corporation, if they are actually transferred for price

B. The assets invested in a cooperative shall be the partnership's assets separate from the individual assets of investors, and the investors shall acquire the status of partners in return for such investment. Thus, the assets invested in kind in a non-corporate cooperative also constitutes the transfer that is a taxable cause of capital gains tax, as the assets are transferred for the value of assets stipulated in the above Article. The time of such transfer shall be deemed the time of the performance of the investment

C. Article 115(3) of the Enforcement Decree of the Income Tax Act, which was newly established by the Presidential Decree No. 9698 of December 31, 1979, is a provision which applies to a specific area at the time of the acquisition of the transferred asset, but it is merely a provision which does not apply to the case where the transferred asset was located at the time of its acquisition, and it cannot be deemed that the above rate of the transferred asset can be applied to the transferred asset which

A.B. Article 4(3) of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982); Article 115(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9698 of Dec. 31, 1979)

A.B. Supreme Court Decision 84Nu392 delivered on December 26, 1984, Supreme Court Decision 85Nu339 delivered on November 12, 1985, Supreme Court Decision 86Nu576 delivered on January 20, 1987

[Judgment of the court below]

Gangwon-gu Director of the District Office

Seoul High Court Decision 86Gu260 delivered on September 29, 1986

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

1. Judgment on the first ground for appeal

The main text of Article 4 (3) of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982) stipulates that the assets shall be actually transferred for consideration regardless of the registration or enrollment of the assets with respect to the transfer income, and it shall be interpreted that the assets are actually transferred for consideration regardless of the registration or enrollment of the assets. It shall not be deemed that the assets are transferred for consideration only when they are transferred for sale, exchange, or investment in kind in a corporation. Thus, even if the assets are transferred for reasons other than sale, exchange, or investment in kind in a corporation, if they are actually transferred for consideration, they shall be deemed that the assets are transferred for consideration. The assets invested in a partnership shall be incorporated for the assets of the partnership separate from the personal assets of the investors, and the investors shall be acquired for the assets of the partnership which are not a corporation shall be deemed as the transfer that is the cause of taxation of the transfer income tax, and the time when the assets are transferred for consideration of the assets as provided in the above Act.

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff entered into a new construction and a partnership agreement with the non-party 1 and the non-party 2 and the non-party 4 on June 1, 1981, and determined that the land of this case was transferred on the date of the above contract. The above judgment of the court below is just, and it cannot be viewed that there was any error as alleged in the arguments, and therefore, it is groundless.

2. Judgment on the second ground for appeal

Article 60 of the Income Tax Act delegates the determination of the standard market price under Articles 23 (4) and 45 (1) 1 of the same Act as prescribed by the Presidential Decree. Based on Article 115 of the Enforcement Decree of the same Act, with respect to land and buildings, a specific area determined by the Commissioner of the National Tax Service shall be determined as the standard market price of the taxable price under the Local Tax Act in an area other than that assessed by the rate. Paragraph (2) of the same Article provides that the method of calculating the profits from the transfer of real estate by applying the above rate means an amount calculated by multiplying the standard market price under the Local Tax Act at the time of transfer, by the rate determined by the Commissioner of the National Tax Service based on the actual market price of the land and buildings with similar land and buildings at the time of acquisition, the same price is located in the specific area at the time of the acquisition of the real estate, as well as at the time of its acquisition, and Article 115 (1) 15 of the Enforcement Decree of the same Act provides that the rate shall be determined as 16.

According to the reasoning of the judgment below, while recognizing the fact that the plaintiff acquired each of the lands of this case which was clearly designated as a specific area only on July 1, 1978 as of March 6, 1961 and April 12, 1976, the court below erred in the misapprehension of legal principles as to transfer margin under Articles 23 (4) and 45 (1) 1 of the former Income Tax Act, which was enforced at the time of the transfer of the land of this case, and Article 170 (3) 1 of the Enforcement Decree of the same Enforcement Decree of the Income Tax Act, and Article 115 (1) 1 and (3) of the Enforcement Decree of the Income Tax Act (Ordinance of the Ministry of Finance and Economy No. 1417 of Feb. 9, 1980) and Article 82-2 (2) (former Ordinance of the Ministry of Finance and Economy No. 1417 of Feb. 9, 1980).

3. Therefore, without examining the remaining grounds of appeal by the Plaintiff, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court, which is the judgment below, and it is so decided as per Disposition

Justices Lee B-soo (Presiding Justice)