[1] Whether the acquisition of land allotted by the authorities in recompense of development outlay designated under the Land Readjustment Projects Act constitutes the acquisition of land under Article 23 (1) 1 of the former Income Tax Act (affirmative), and in principle, the time of acquisition (=the date of settlement)

[2] The case holding that the acquisition time of the land allotted by the authorities in recompense for development outlay is the total payment of the original price in case where the liquidation money is additionally paid after purchasing the land allotted by the authorities in recompense for development outlay under the Land Readjustment and Rearrangement Projects Act in full

[1] In full view of the provisions of Articles 4(3) and 23(1) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994); Article 44 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14467, Dec. 31, 1994); Articles 54(1) and 57(4) of the Land Readjustment and Rearrangement Projects Act, the acquisition of land allotted by the authorities in recompense for development outlay designated under the Land Readjustment Projects Act constitutes the acquisition of land under Article 23(1)1 of the former Income Tax Act; the time of acquisition constitutes the date of liquidation of the price in principle under Article 53(1)1 of the Enforcement Decree of the same Act.

[2] The case holding that in case where liquidation money for the increased area is additionally paid as a result of a land substitution disposition increase after purchasing the land allotted by the authorities in recompense for development outlay designated under the Land Readjustment Projects Act and in full payment of the price, the acquisition time of the land allotted by the authorities in recompense for development recompense shall be the time of the original payment and the acquisition of the above land shall not be deemed to have been acquired at the time of the public announcement of the land substitution disposition or the payment of liquidation money, on the ground that the above acquisition

[1] Article 4 (3) (see current Article 8 (1)), Article 23 (1) 1 (see current Article 94 subparagraph 1), Article 27 (see current Article 98), Article 44 (see current Article 157), Article 53 (1) 1 (see current Article 162 (1) 1), and Article 57 (4) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994); Article 54 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1467, Dec. 31, 1994); Article 53 (1) 1 (see current Article 162 (1) 1); Article 54 (1), and Article 57 (4) of the former Income Tax Act / [2] Article 97 (1) of the former Enforcement Decree of the Income Tax Act (amended by Act No. 4803, Dec. 22, 1994)

[1] Supreme Court Decision 88Nu8708 delivered on March 27, 1991 (Gong1991, 1302)

Plaintiff 1 and one other (Attorney Kim Du-du, Counsel for the plaintiff-appellant)

Head of Gangnam District Tax Office and one other

Seoul High Court Decision 97Gu43279 delivered on June 9, 1998

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

1. According to the reasoning of the judgment below, the facts established by the court below are as follows.

A. On April 17, 1987, the plaintiffs entered into a sales contract jointly purchasing 12,430,000,000 won of the purchase price of 62 block 1,302.7 square meters in the Gwanak-si, which is executed by the project implementer as the project implementer, with the purchase price of 62 block 1,30,000,000 won, the purchaser may use it at the time of the full payment of the price. The purchaser shall transfer the ownership to the purchaser after the land readjustment project is completed, and the buyer shall not transfer the ownership to another without the seller's approval, even if there is an increase or a decrease in the area by the final survey, the purchaser shall not raise an objection such as load, etc., but if the seller deems it necessary to liquidate the increased or decreased area,

B. The plaintiffs paid the full amount of the price by June 13, 1987. Since the disposition of replotting was publicly announced on May 24, 1988, the land allotted by the authorities in recompense for development outlay for development outlay for the instant case has increased to 1,308.9 square meters in the area as the lot number was set to be set to be set to 1,308.9 square meters in the Gu-U.S., the plaintiffs additionally paid 591,585 square meters in the amount of liquidation over 6.2 square meters in the increased area on November 28, 198, and the plaintiffs paid 591,585 won in the Gu-U.S. on March 22, 1990.

2. In full view of the provisions of Articles 4(3) and 23(1) of the Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply), Article 44 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14467, Dec. 31, 1994; hereinafter the same shall apply) and Articles 54(1) and 57(4) of the Land Readjustment Projects Act, acquisition of land allotted by the Land Readjustment Projects Act constitutes acquisition of land under Article 23(1)1 of the Income Tax Act, and its acquisition time constitutes the date of payment in principle pursuant to Article 53(1)1 of the Enforcement Decree of the same Act (see, e.g., Supreme Court Decision 88Nu8708, Mar. 27, 1991).

Therefore, even if the plaintiffs paid liquidation money in addition to the original contract part as seen earlier, the increased portion is not separate from the original contract part, and the contract area or the increased area is not divided at the time of the initial contract, and the plaintiffs agreed to allow the plaintiffs to use it by setting the price for the entire land and paying the price for the entire land at the time of the initial contract, and the land secured for recompense for development outlay is in line with the land scheduled for substitution in terms of the location, size, and owner's determination by the determination of replotting. Thus, according to Article 47 (1) 1 of the Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995; hereinafter the same), if the area of right increases due to replotting disposition, the liquidation money paid by the landowners to the project implementer shall be deducted from the transfer value of the land as the "facility cost and improvement cost" stipulated in Article 45 (1) 2 of the Enforcement Rule of the same Act at the time of transfer of the land substitution.

Although the reasoning of the court below is insufficient, it is justified in rejecting the plaintiffs' assertion that the time when the plaintiffs acquired the land allotted by the authorities in recompense for development outlay of this case shall be deemed to be May 24, 1988 or November 28, 1988, the date of public announcement of replotting disposition, and therefore, it is not erroneous in the misapprehension of legal principles as to the time of acquisition of land allotted by the authorities in recompense for development outlay of development outlay and assets as otherwise alleged in the ground of appeal

3. Therefore, all appeals are 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 on the bench.

Justices Lee In-hee (Presiding Justice)