[1] In a case where a judgment ordering the implementation of the procedure for ownership transfer registration due to payment of remaining price is rendered, the time of transfer of real estate (=the date of payment of actual price)

[2] Where the time of transfer of real estate is determined before the amendment of Article 166(4)3 of the former Enforcement Decree of the Income Tax Act or after the enforcement date of the above amendment, the applicable laws and regulations (i.e., after the amendment)

[3] In a case where the officially assessed individual land price was determined, the standard of taxation (i.e., the officially assessed individual land price after revision) and whether applying the corrected individual land price retroactively goes against the principle of no taxation without law

[1] According to Article 27 of the former 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, 1994), in calculating gains on transfer of assets, the time of acquisition and transfer shall be, in principle, the date of settlement of the price of the assets in question, and in cases where the date of exceptionally settlement is unclear, the date of settlement of the price in question shall be the date of settlement of the price in a sales contract. "the date of settlement of the price" in the above provision refers to the date of actual acquisition of ownership by paying the remaining price in a lawsuit against the transferor. Thus, even if the judgment ordering the transferee to implement the procedure for transfer registration of ownership due to payment of the remaining price in a lawsuit against the transferor, the time of transfer of the real estate in question shall be the date the transferee actually paid the remaining price to the transferor.

[2] Article 166 (4) 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14860, Dec. 30, 1995; Presidential Decree No. 14860, Dec. 30, 1995; Presidential Decree No. 1666 (4) 3 of the same Act, one of the cases where transfer value and acquisition value are based on the actual transaction value, refers to one of the cases where the transferor provides evidential documents and reports the actual transaction value at the time of transfer and acquisition to the head of the district tax office having jurisdiction over the place of tax payment within the date of determination of transfer income tax base and tax amount. Article 8 (2) of the Addenda of the same Enforcement Decree (amended by Presidential Decree No. 14860, Dec. 30, 1995) provides that the above provision shall apply to the determination of transfer income amount after the enforcement date of the amended Enforcement Decree,

[3] As long as the officially assessed individual land price was determined and publicly announced as a result of an obvious error in the computation of the land price, such as error in the land characteristics investigation, the previously determined and publicly announced individual land price loses its effect, and the newly determined individual land price, which serves as a basis for the basic date, takes effect retroactively to the basic date of the assessment, so in a case where the previously determined individual land price was corrected, it shall be based on the corrected individual land price, and in a case where the revised individual land price was made by retroactively applying the corrected individual land price, it shall not be deemed that the taxpayer’s trust is less, or that it

[1] Article 27 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; see current Article 98); Article 53 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467, Dec. 31, 1994; see current Article 162 (1)) / [2] Article 96 of the former Income Tax Act (amended by Act No. 5031, Dec. 29, 1995; see current Article 166 (4) 3 of the former Income Tax Act (amended by Presidential Decree No. 15191, Dec. 31, 1994); Article 8 (2) of the former Framework Act on National Taxes / [3] Article 166 (1) of the former Income Tax Act (amended by the Presidential Decree No. 14467, Dec. 29, 1994; see current Article 98 (19)

[1] Supreme Court Decision 96Nu525 delivered on May 9, 1995 (Gong1995Sang, 2136), Supreme Court Decision 96Nu525 delivered on May 7, 1997 (Gong1997Sang, 172), Supreme Court Decision 96Nu1570 delivered on July 8, 1997 (Gong1997Ha, 2421) / [3] Supreme Court Decision 93Nu16925 delivered on December 7, 1993 (Gong194Sang, 386), Supreme Court Decision 93Nu1956 delivered on June 14, 1994 (Gong194, 1973), Supreme Court Decision 9Nu19849 delivered on September 36, 1995 (Gong194, 1973)

Plaintiff (Attorney Park Jong-ho, Counsel for the plaintiff-appellant)

head of Dongjak-gu Tax Office

Seoul High Court Decision 96Gu46875 delivered on December 23, 1997

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

We examine the grounds of appeal.

1. On the first ground for appeal

According to Article 27 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994; hereinafter referred to as the "former Act") and Article 53 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994; hereinafter referred to as the "former Enforcement Decree"), in calculating gains on transfer of assets, the time of acquisition and transfer shall be, in principle, the date of liquidation of the price of the assets in question and the date of exceptionally settlement is unclear, the date of settlement of the price in a sales contract is the date of actual acquisition of ownership by paying the remaining price (see, e.g., Supreme Court Decision 96Nu1570 of Jul. 8, 1997); and therefore, in cases where a transferee in a lawsuit against the transferor, the date of actual payment of the remaining price in question cannot be seen as the date the transferee actually paid the price in question and the date of transfer is determined otherwise by the transfer.

In the same purport, the decision of the court below on September 29, 1994 that the time of the transfer of the real estate in this case was just and it did not err in the misapprehension of legal principles as to the time of the transfer.

2. On the second ground for appeal

Examining the relevant evidence in light of the records, we affirm the court below's finding that each sales contract (No. 9-3 and No. 4 of the evidence No. 9-4) submitted by the plaintiff to the defendant as evidence of the actual acquisition value of the real estate of this case has no credibility and no evidence exists to verify the actual acquisition value, and there is no error of law by misconception of facts against the rules of evidence and failing to exhaust all necessary deliberations.

Meanwhile, Article 166(4)3 of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 14860, Dec. 30, 1995; hereinafter "the Enforcement Decree of the Income Tax Act") provides that "transfer value and acquisition value as an exception to the principle of taxation of standard market price shall be based on actual transaction value." Article 166(4)3 of the Enforcement Decree of the Income Tax Act provides that the transferor shall prepare evidential documents within the date of determination of transfer income tax base and tax amount and reports the actual transaction value at the time of transfer to the head of the district tax office having jurisdiction over the place of tax payment. Article 8(2) of the Addenda of the Enforcement Decree of the amended Act provides that the above provision applies from the date of determination of transfer income after this Decree enters into force ( January 1, 1996). Thus, Article 166(4)3 of the Enforcement Decree of the amended Enforcement Decree of the Income Tax Act shall not apply to this case where the transfer value of real estate was determined after the enforcement date of the amended Enforcement Decree, so that it cannot affect the real estate transfer value prior to the transfer value.

3. On the third ground for appeal

As long as the individual land price was determined and publicly announced as a result of an obvious error in the calculation of land characteristics, such as a mistake in the land, the individual land price originally determined and publicly announced shall lose its validity, and the new individual land price determined and publicly announced shall retroactively take effect on the basic date. Thus, in a case where the individual land price, which serves as the basis for the assessment of land, was corrected, it shall be based on the corrected individual land price (see, e.g., Supreme Court Decision 93Nu16925, Dec. 7, 193). As above, it cannot be deemed that a taxpayer’s trust is lost, or a taxpayer’s disadvantage is contrary to the principle of prohibition of disadvantageous alteration, or is against the principle of no taxation without law (see, e.g., Supreme Court Decision 94Nu3582, Apr. 28, 195)

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 application of the officially assessed individual land price.

The allegation in the grounds of appeal is that it is unlawful for the Sinpo City to accept a request for re-audit by the Nonparty (the assignee) who attempted to grant the deadline for request for re-audit under Article 12-2 of the Guidelines for Joint Investigation of Land Price (amended by Prime Minister Directive No. 281) in relation to the officially assessed individual land price of 2,354 square meters in 194, among the real estate in this case. However, if the calculation of the officially assessed individual land price is clearly erroneous as provided in Article 12-3 of the above Joint Investigation Guidelines, if the calculation of the officially assessed individual land price is clearly erroneous, the competent Mayor, etc. can correct it ex officio, and it does not prohibit ex officio revocation after the lapse of the objection period such as a request for re-audit (see Supreme Court Decision 95Nu6311, Sept. 15, 195). Even if the Sinpo City accepted a request for re-audit with the limit for request for re-audit, such a reason alone cannot be deemed unlawful.

All of the grounds of appeal cannot be accepted.

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 on the bench.

Justices Seo Sung-sung (Presiding Justice)