The time of acquisition of assets under the Income Tax Act on land acquired by prescription (=the time the statute of limitations is completed)

Article 27 of the former Income Tax Act (wholly amended by Act No. 4803 of Dec. 22, 1994) and Article 53 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 1467 of Dec. 31, 1994) provide that the time of acquisition and transfer of assets shall be the time of actual acquisition unless otherwise specifically provided, and that the possessor of the real estate, the time of completion of the acquisition, shall be the time of completion of the acquisition, and therefore the possessor of the real estate, the time of completion of the acquisition, shall be the time of acquisition under the above Act and subordinate statutes. Since the retroactive effect of the acquisition by prescription under Article 247(1) of the Civil Act, it is meaningful that the possession of the possessor during the period of the acquisition, mainly, shall be deemed legitimate, it shall not be deemed that

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

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Park Jong-ok (Law Office, Attorneys Park Byung-il et al., Counsel for the defendant-appellant)

Head of Nowon Tax Office

Seoul High Court Decision 95Gu14215 delivered on November 30, 1995

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged on December 24, 1966 that the plaintiff occupied the land of this case and 20 years have passed since the date of acquiring the land of this case from December 24, 1966, that the non-party 1,553.4 square meters of the land of this case were sold to the non-party 1,553. The court below determined that the plaintiff's acquisition date of this case was legitimate by considering that the defendant's possession of the real estate acquired by the completion of the prescription period on November 23, 1989 after filing a lawsuit against the non-party 2, who is the title holder of the registration, was sentenced to the judgment in favor of the plaintiff on November 23, 1989.

However, Article 27 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) and Article 53 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) provide that the time of acquisition and transfer of the asset shall be the time of actual acquisition unless otherwise specifically provided (see, e.g., Supreme Court Decisions 92Nu8934, Apr. 27, 1993; 94Nu14827, May 9, 195); since the possessor of the real estate, the time of completion of the acquisition, the time of completion of the acquisition, should be deemed the time of acquisition under the above Act, and since the retroactive effect of the acquisition under Article 247(1) of the Civil Act, mainly is deemed the lawful possessor of the real property during the period of acquisition, it shall not be deemed that the above provision is different for the reason of acquisition.

Nevertheless, the court below erred by misapprehending the legal principles as to the acquisition time of assets in the transfer income tax, which affected the conclusion of the disposition of this case by deeming the acquisition time of the land in this case to be December 24, 1966 when the plaintiff commenced possession as the time of December 24, 1966. The argument pointing this out is with merit.

Therefore, the judgment 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 Final Young-young (Presiding Justice)