(a) Whether a purchaser of the real estate that has paid down payment and part of intermediate payment constitutes "transfer of assets" where the latter transfers the real estate to a third party;

B. The meaning of the transfer or acquisition time of assets as provided in Articles 27(1) and 27(1) of the former Income Tax Act (amended by Act No. 3098, Dec. 5, 1978)

A. In a case where a real estate purchaser re-transfers the real estate to the non-party with the payment of down payment and intermediate payment, it is difficult to view that the Plaintiff, etc. actually acquired the ownership of the real estate, not by transferring the ownership of the real estate to the non-party, but by transferring the rights and obligations of the purchaser. This does not constitute the transfer of assets under Article 4(1)3 of the former Income Tax Act (amended by Act No. 3098, Dec. 5, 1978).

B. The provision on the transfer or acquisition of assets under Article 27(1) of the Income Tax Act does not mean that the legal effect of transfer or acquisition takes place on the date of receipt or receipt of the price other than the down payment, but is merely a legal fiction of the time of transfer or acquisition under tax law when the assets are transferred or acquired.

A. Article 4(1)3(b) of the former Income Tax Act (amended by Act No. 3098, Dec. 5, 1978); Article 27(1) of the former Income Tax Act (amended by Act No. 3098, Dec. 5, 1978);

Supreme Court Decision 81Nu206 Decided June 14, 1983

[Judgment of the court below]

Gangwon-gu Director of the District Office

Seoul High Court Decision 82Gu349 delivered on February 10, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant litigant are examined.

According to Articles 4(1)3 and 4(3) of the former Income Tax Act (amended by Act No. 3098, Dec. 5, 1978; Act No. 3098) that apply to this case, transfer income refers to income accruing from the transfer of assets, and transfer of assets refers to the actual transfer of the ownership of the assets at a cost. Meanwhile, according to Article 23 of the same Act, assets subject to transfer refer to land, buildings and other assets prescribed by the Presidential Decree. However, according to the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 929, Dec. 30, 1978; Presidential Decree No. 9229) that was enforced at the time of the instant case, there is no provision concerning other assets

Therefore, it is clear that capital gains subject to taxation of capital gains tax in the time of the enforcement of the former Income Tax Act and the Enforcement Decree, mean income derived from the transfer of ownership of land or building. Here, it is reasonable to say that the concept of ownership of land or building includes not only the ownership that has been registered but also the actual ownership that has been paid almost in full after the purchase (see Supreme Court Decision 73Nu201 delivered on October 25, 1974).

However, according to the facts established by the court below in this case, six of the plaintiff et al. purchased the real estate of this case from the Seoul Trust Bank in 290,000,000 won and paid the down payment of KRW 29,873,876 won and the intermediate payment of KRW 38,873,876 won, Gohap67,873,8776, and the above purchaser's rights and duties to the non-party joint stock company was transferred to the non-party joint stock company. As such, the plaintiff et al. paid only the down payment and the intermediate payment of KRW 290,000,000 and only KRW 67,873,876 to the non-party joint stock company cannot be deemed to have actually acquired the ownership of the real estate of this case. (It cannot be deemed that the plaintiff et al. actually acquired the ownership of the real estate of this case only after the expiration of the outstanding payment date of the purchase price with the Seoul Trust Bank). It is justified in the judgment of this case.

According to Article 27 (1) of the Income Tax Act, the transfer or acquisition time of assets shall be the date when the assets are transferred or acquired after concluding the relevant contract and receiving the price other than the down payment. However, this is not the meaning that the legal effect of the transfer or acquisition takes place on the date of partial receipt of the price, but the transfer or acquisition of the assets is merely the legal fiction of the transfer or acquisition date under the tax law when the assets are transferred or acquired.

In conclusion, the above judgment below is without merit and there is no error in the misapprehension of legal principles or incomplete deliberation, and the appeal costs are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kang Jong-young (Presiding Justice)