[1] The time of acquisition of real estate, which serves as the basis for the calculation of capital gains in a case where the real estate acquired under the existing exchange contract is to be newly purchased by rescinding the exchange contract after acquisition of ownership under the exchange contract (the date of settlement of price

[2] Where it is impossible to distinguish each actual transaction price because several real estate are traded collectively, the method of calculating the actual transaction price by assets

[1] Where Party A and Party B agreed to cancel the exchange agreement after undergoing a settlement of price pursuant to the exchange agreement, and Party A’s real estate, which was originally owned by Party A, was originally owned by Party A, to return the registration of ownership transfer in the future, and Party A agreed to conclude the registration of ownership transfer as it is, and Party A subsequently transferred the real estate to a third party, the time of acquisition of such real estate shall be deemed the date of settlement of price pursuant to the exchange agreement, which is issued by documents necessary for the registration of ownership transfer.

[2] In case where several real estate transactions are conducted collectively, each actual transaction price may be calculated by way of calculating in proportion to the standard market price of each transferred asset pursuant to Article 170(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14083, Dec. 31, 1993) if it is confirmed, but it is impossible to divide each actual transaction price into the actual transaction price.

[1] Article 27 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), Article 98 of the former Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), Article 53 (1) of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) / [2] Article 23 (4) of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993), Article 45 (1) (see Article 97 (1) of the current Income Tax Act), Article 170 (2) of the former Income Tax Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993) (see Article 100 (2) of the current Income Tax Act)

[2] Supreme Court Decision 92Nu5171 delivered on December 24, 1992 (Gong1993Sang, 643), Supreme Court Decision 93Nu845 delivered on September 28, 1993 (Gong1993Ha, 299), Supreme Court Decision 95Nu2432 delivered on July 14, 1995 (Gong195Ha, 309), Supreme Court Decision 95Nu7246 delivered on September 29, 195 (Gong195Ha, 3644)

Private Chuncheon (Law Firm Gwangju, Attorneys Kim Tae-ho et al., Counsel for the defendant-appellant)

Head of Sungbuk Tax Office

Seoul High Court Decision 95Gu10268 delivered on December 22, 1995

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

The grounds of appeal and the supplemental appellate brief submitted after the lapse of the period are examined as well.

1. According to the facts duly established by the court below, on December 26, 198, the plaintiff paid the above 190 won to the 19-year 479, 479-1 of Songpa-gu Seoul, which is owned by the plaintiff, for the above 20-year 487.57 square meters (hereinafter "bow building"), 530,000 won, and 9-7 square meters of 930, 930, 196.7 square meters of the above 930, 198, and 227.4 square meters of the above 9-year 190,000, 198, and 19-year 100,0000, for each of the above 19-year 10,000,000 won for the above 19-day 20,000,0000 won for each of the above 1-day 3-day 9,000,700.

If the facts are as above, since the settlement of price for the real estate of this case was made at the end of December 198 and the documents necessary for the registration of transfer of ownership were delivered, the time of acquisition of the real estate of this case shall be deemed to be the end of December 198, 198, which is the date of the settlement of the balance. The judgment below is just, and there is no error in the misapprehension of the legal principles as to the time of acquisition, etc. like the theory of lawsuit in the judgment below, and the Supreme Court precedents cited in the theory of lawsuit are no errors in the misapprehension of the legal principles as to the time of acquisition, etc., and it does not constitute the transfer of assets subject to transfer income tax, since the contract was rescinded without the settlement of the purchase price, or the transfer of ownership by the method of restitution due

2. Each provision of Article 23(1), (2), and (4), and Article 45(1)1 of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993; hereinafter referred to as the “Act”) and Article 170(4)3, etc. of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993; hereinafter referred to as the “Decree”) shall be, in principle, converted from the existing actual market price in calculating transfer margin. Thus, in cases where assets are transferred, there is no preliminary return or final return on transfer of assets, or there is no evidentiary document proving the actual market price, or where evidentiary documents submitted at the time of such declaration are confirmed by documentary evidence, and thus, it shall be determined that the actual market price at the time of acquisition and transfer cannot be confirmed, such as 90. 15. 98. 196. 196.

The court below held that the transfer of the real estate in this case does not constitute exceptional cases where the actual transaction value under the proviso of Article 170 (1) of the Decree is confirmed by documentary evidence at the time of the preliminary return of transfer margin, but the transfer of the real estate in this case is confirmed by documentary evidence at the time of the preliminary return of transfer margin, on the ground that the transfer of the real estate in this case does not constitute an exceptional cases where the actual transaction value can be confirmed by the documentary evidence submitted at the time of the preliminary return of transfer margin, and the transfer of the real estate in this case does not constitute an actual transaction value and the other one which cannot be confirmed by the price converted by the prescribed method, and ultimately, the acquisition value or transfer value, which is the basis of the calculation of transfer margin of the real estate in this case, is all determined by the standard market price pursuant to the main sentence of Article 170 (1) of the Decree.

In light of the records and the above legal principles, the above recognition judgment of the court below is just, and all the acquisition value and transfer value, which are the basis of calculation of transfer margin of the real estate of this case, shall be calculated based on the actual transaction value pursuant to the proviso of Article 170 (1) of the Decree, is merely a mistake of the judgment of the court below or criticism of the judgment below on the premise of the fact that it is inconsistent with the approval of the court below. Thus, there is no error in the misapprehension of legal principles as to the calculation

3. Where several real estate are traded collectively, the actual transaction price of each real estate is confirmed, but if it is impossible to divide each actual transaction price in proportion to the standard market price by transferred asset pursuant to Article 170(2) of the Decree (see Supreme Court Decisions 95Nu2432, Jul. 14, 1995; 95Nu7246, Sept. 29, 195; 95Nu7246, Sept. 29, etc.). The judgment below that the transfer margin of the real estate of this case should be calculated based on the standard market price can be deemed to include the purport of rejecting the plaintiff's assertion that the transfer margin should be calculated based on the method of calculating the land price and building value of the real estate of this case, and thus, it cannot be said that the judgment of the court below is erroneous. The argument is without merit.

4. 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 Chocheon-sung (Presiding Justice)