A. Purport of Article 45(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9960, Jul. 11, 1980; Presidential Decree No. 9960)

(b) If transfer income tax is levied on the exercise of a right of transfer for security by way of settlement of attribution;

(c) Methods of calculating transfer marginal profits where no preliminary or final return on transfer marginal profits exists;

A. Article 45(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1980, Jul. 11, 1980; Presidential Decree No. 9960) is merely a determination of the criteria for recognition of transfer in cases where a taxpayer claims transfer of security, and it does not necessarily mean that the transfer of assets should be deemed in cases where a copy of a contract meeting the requirements under the final return

(b) even if the transfer of assets is made in order to secure the repayment of the secured obligation, if the secured person assessed the secured asset and appropriated it for the repayment of the secured obligation and reverted to him/her, the transfer of such asset shall also be included in the transfer which is subject to capital gains tax.

(c) In calculating capital gains, the transfer difference shall be calculated according to the current market price, because the actual transaction price is unclear, if there is no preliminary return on transfer of assets or final return on tax base.

A. Article 45(1)(b) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9960, Jul. 11, 1980); Article 23 of the Income Tax Act; Article 45(1)(c) of the Enforcement Decree of the Income Tax Act; Articles 23, 95, and 100 of the Income Tax Act

Supreme Court Decision 83Nu120 Decided May 24, 1983; 79Nu187 Decided September 11, 1979; 80Nu616 Decided March 10, 1981; 77Nu222 Decided March 27, 197; 79Nu394 Decided March 11, 1980

[Judgment of the court below]

Director of the tax office

Seoul High Court Decision 82Gu444 delivered on March 14, 1983

The plaintiff's appeal is dismissed.

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The costs of appeal dismissed shall be borne by the plaintiff.

1. We examine the Plaintiff’s attorney’s grounds of appeal.

(A) Whether the transfer income tax is subject to taxation

Article 45(1) of the Enforcement Decree of the Income Tax Act provides that "in cases where a debtor transfers assets to secure the repayment of debts, a copy of a contract meeting the following requirements shall not be deemed a transfer where a copy of the final return of tax base is attached to the final return of tax base," and it is not interpreted that in cases where a taxpayer claims the transfer of assets for security, a transfer of assets should be deemed a transfer of assets (Article 83Nu120 delivered on May 24, 1983) and in cases where a copy of contract meeting the requirements prescribed in the final return of tax base is not attached to the final return of tax base of tax base, the purport that the transfer of real estate in the judgment of the court below shall be deemed a transfer of assets subject to capital gains tax (Article 45(1) of the Enforcement Decree of the Income Tax Act)

However, when the plaintiff and the non-party 1 borrowed 44,00,000 won from the non-party 2 and the non-party 3, they borrowed 44,00,000 won or more for the purpose of collateral, the court below held that the joint ownership should be subject to the transfer of assets subject to the transfer income tax within the scope of the right of satisfaction prior to the transfer of assets, and that the transfer of assets should be subject to the transfer income tax if the transfer of assets is made for the purpose of collateral and the transfer of assets is not made by the due date for the repayment of the loan, but the non-party 1, the creditor, was unable to repay the loan at the due date after the provisional registration was made for the purpose of collateral, and that the principal registration procedure of the above provisional registration was made for the purpose of collateral, but at the same time, the provisional registration procedure was made for the transfer of assets by the non-party 1, 3000 and the non-party 1, 197.

(B) The calculation of gains on transfer.

In calculating capital gains under Article 23 of the Income Tax Act, if there is no preliminary return on the gains from transfer of assets under Article 95 of the Act or the final return on tax base under Article 100 of the Act, the gains from transfer shall be calculated based on the current market price as it falls under the case where the actual transaction price is unclear (Supreme Court Decision 77Nu222 delivered on December 27, 197; Supreme Court Decision 79Nu394 delivered on March 11, 1980). Thus, the court below is just in holding that the tax assessment made by the defendant by calculating the transfer value and the acquisition value based on the current market price on the ground that the transfer of the real estate was not made a preliminary return on the gains from transfer of assets or the final return on tax base on the

2. We examine the grounds of appeal by the defendant litigation performer.

For its reasons, the court below affirmed the judgment below's decision that the plaintiff and the non-party 1 jointly owned the real estate was transferred to the non-party 2 and the non-party 3, the creditor of December 30, 1980 as collateral and completed the registration of ownership transfer, but at the same time, the plaintiff, the non-party 4, and the non-party 5 agreed to return the share of 2415, out of the above real estate to the plaintiff, the non-party 4, the non-party 4, and the non-party 5 for the sale on the same day. Accordingly, the court below's decision that the plaintiff's share of 1,000, 326, 1,000, 1,000, 1,000, and 1,000, 1,000, 1,000, and 1,000,000,000,000,000 won were not transferred to the plaintiff.

However, even after examining relevant evidence, if the plaintiff 2 and the non-party 1 were disposed of by the plaintiff 2 and the non-party 3 for the purpose of securing the claim, and they completed the transfer registration of shares directly in the future, it shall be deemed that the plaintiff 1 and the non-party 1 transferred the above co-ownership shares to the non-party 4 in the future and 100 percent of the above co-ownership shares to the non-party 5 in the future, and there is no evidence to find what is the circumstance and reason why the transfer registration was directly made in the non-party 5 in the future. If the transfer registration of shares in the future was made by the non-party 2 and the non-party 3's disposal of the non-party 3 in the form of realization agreement, only the remaining co-ownership shares are appropriated for the repayment of the obligation pursuant to the realization agreement, and thus it is erroneous for the court below to find that the remaining co-ownership shares are subject to the transfer registration of the non-party 1 and the non-party 2's share will be returned to the plaintiff's share.

3. Therefore, the plaintiff's appeal is dismissed, and the part against the defendant is reversed and remanded to the court below for further proceedings consistent with this Opinion. The costs of appeal to the Supreme Court are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Il-young (Presiding Justice)