In a case where a decision of revocation of a ruling of revocation of a re-auction order issued in the appellate trial after a successful bidder paid all the successful bid price, etc. after obtaining permission from an auction court when a successful bidder had been issued a re-auction order due to the unpaid price of the successful bidder, the case holding that the time of acquisition of real estate under the Income Tax Act is the date of full payment of the successful bid price, since the validity of a ruling of revocation of a re-auction order is not naturally suspended, and thus the decision of revocation of a re-auction order

Article 98 of the Income Tax Act, Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005), Article 417 (see current Article 447), Article 504 (see current Article 16 of the Civil Execution Act), Article 517 (see current Article 15 of the Civil Execution Act), Article 648(4) (see current Article 138 of the Civil Execution Act), Article 735 (see current Article 275 of the Civil Execution Act) of the former Civil Procedure Act.

[Defendant-Appellant] Plaintiff (Law Firm Sol, Attorneys Hawon-won)

The Director of Gangnam District Office

Seoul High Court Decision 2008Nu22824 decided January 7, 2009

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

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

Article 98 of the Income Tax Act provides that "the time of acquisition and time of transfer of assets shall be determined by Presidential Decree in calculating gains from transfer," and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Feb. 19, 2005) provides that "the time of acquisition and time of transfer under Article 98 of the Income Tax Act shall be the date of liquidation of the price of the assets except for the cases falling under any of the following subparagraphs." The above provision separately provides that "the time of sale and time of transfer under Article 98 of the Income Tax Act shall be the date of liquidation of the proceeds of the assets concerned shall not be deemed the date of liquidation of the proceeds of sale," each of the above provisions provides that "the time of acquisition and time of transfer of the assets, which serves as the basis for various methods within the system of the income tax law, shall be uniformly identified and shall be interpreted and applied under Article 167 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18565, Jun. 222, 199, 197).

The court below accepted the judgment of the court of first instance and recognized facts as stated in its holding, and determined that the time when the plaintiff acquired the real estate of this case on February 8, 191 when the price of the auction was fully paid in full, since the decision of permission of the auction of this case was valid by the decision of revocation of re-auction of this case, and thereby the person entrusted with the name of the plaintiff by the plaintiff acquired the ownership of the real estate of this case on the date of full payment of the successful bid price.

In light of the above legal principles and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the time of acquisition of assets, etc.

Therefore, the appeal is 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.

Justices Jeon Soo-ahn (Presiding Justice)