Where a registration of ownership transfer is made with permission for land within a zone subject to land transaction permission after payment is made, the time of transfer which serves as the basis for calculating capital gains (=the date of settlement

In a case where a sale contract is concluded on the premise that a land within a zone subject to permission for land transaction under the Act on the Utilization and Management of the National Territory and the settlement of the price is made after obtaining permission for land transaction, and the registration for ownership transfer is made upon obtaining permission for land transaction. Although the sale contract takes effect as a legal juristic act until the land transaction permission is obtained, the contract becomes effective later, and the contract becomes effective retroactively. Thus, the time of transfer of the land which serves as the basis for calculating capital gains is the date of settlement in accordance with the provisions of Article 27 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) and Article 53 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14467 of Dec. 31

Article 27 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) (see current Article 98), Article 53 (1) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) (see current Article 162 (1) 1 of the former Income Tax Act)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-appellant-appellee-appellant-appellant-Appellee-Appellee-

Plaintiff

The Director of Gangnam District Office

Seoul High Court Decision 96Gu32463 delivered on July 2, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. In a case where a sale contract is concluded on the premise that a land within a land transaction permission zone is to obtain a long-term land transaction permission under the Act on the Utilization and Management of the National Territory and the settlement of the price is made after obtaining a land transaction permission, and the registration of ownership transfer is made upon obtaining a land transaction permission, the sale contract is not effective as a legal complete juristic act until the land transaction permission is granted, but the contract is later effective retroactively. Thus, the time of transfer of the land, which serves as the basis for calculating capital gains, shall be the date of settlement of the price pursuant to the provisions of Article 27 of the Income Tax Act (wholly amended by Act No. 4803 of Dec. 22, 1994) and Article 53 (1) 1 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 14467 of Dec. 31, 194).

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the transfer time of assets as otherwise alleged in the grounds of appeal.

2. According to the reasoning of the judgment below, on July 29, 1990, the court below held that the time of transfer of each of the lands of this case was August 29, 1990, on the ground that the plaintiff entered into a sales contract to sell each of the lands of this case to the non-party 24,200,000 won for the same day, and received each of the down payment amount of KRW 4,20,000 and the balance of KRW 20,000 on August 29 of the same year, and that the time of transfer of each of the lands of this case was August 29, 190. In light of the records, the court below's recognition and decision is just and acceptable, and there is no violation of the rules of evidence,

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 on the bench.

Justices Kim Jong-sik (Presiding Justice)