Time of acquisition as a basis for calculating gains on the transfer of apartment acquired by redevelopment partners through the disposal of urban redevelopments under the Urban Redevelopment Act.

Article 49(2) of the Urban Redevelopment Act, as well as the site acquired by the sale disposition, and the building facilities are also deemed the substitute land under the Land Readjustment Act, even if there is no provision that regards the building facilities as the substitute land under the Land Readjustment Projects Act, and there is no provision that the time of acquisition is considered the acquisition of the land before the substitute land only with respect to the land acquired through the land acquired by the disposition of replotting under this Act, Article 53(3) of the Enforcement Decree of the Income Tax Act, the Land Readjustment Projects Act, and other Acts concerning the time of acquisition of transferred asset, and no provision is provided with respect to the building. Therefore, among apartment buildings, the acquisition date of the previous land

Article 27 of the Income Tax Act, Article 53 (3) of the Enforcement Decree of the same Act, Article 49 (2) of the Urban Redevelopment Act

[Plaintiff-Appellant] 11087 decided June 12, 1992 (Gong1992, 2169)

Plaintiff

The director of the tax office.

Seoul High Court Decision 92Gu4309 delivered on July 8, 1992

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

We examine the grounds of appeal.

On July 31, 1985, the court below recognized that the plaintiff acquired the previous land of this case on July 31, 1985, and thereafter, as the previous land of this case was incorporated into the redevelopment project zone executed by the non-party housing improvement redevelopment partnership established under the Urban Redevelopment Act, the plaintiff applied for parcelling-out of the apartment to the apartment to be constructed by the redevelopment project, and as a result, the management and disposal plan of this case and the notice of parcelling-out disposal was made on January 11, 1989 that determined the plaintiff as the selling authority of the apartment of this case and the settlement money equivalent to the difference between the price of the previous apartment of this case and the price of the previous land of this case was fully paid to the non-party association, and determined on June 23, 1989 that the apartment of this case was transferred to the non-party, according to the relevant Acts and subordinate statutes, the time of acquisition shall be deemed to be the previous land from the day after the notice of parcelling-out disposal as a substitute land under the Urban Redevelopment Project Act.

However, Article 49(2) of the Urban Redevelopment Act does not provide that building facilities shall be deemed land substitution under the Land Readjustment Projects Act even if the building facilities, as well as the site acquired through the sale of lots, are also deemed land substitution under the Land Readjustment Projects Act. Moreover, only the land acquired through a land substitution disposition under Article 53(3) of the Enforcement Decree of the Income Tax Act concerning the time of acquisition of transferred assets, such acquisition shall be deemed the acquisition of the land prior to the land substitution, and no provision is provided regarding buildings. As to the apartment of this case, the site of this case shall be deemed the time of acquisition on July 31, 1985, which is the acquisition date of the previous land, but the building shall be deemed the time of acquisition on January 11, 1989, which completely paid liquidation money under Article 53(1) of the Enforcement Decree of the Income Tax Act (see Supreme Court Decision 91Nu1087 delivered on June 12, 192).

Nevertheless, in a different view, the lower court determined that the acquiring time of the instant apartment building was the acquisition of the instant previous land, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine on the time of acquisition of the transferred asset.

The argument pointing this out is with merit.

However, the liquidation money paid by the plaintiff to the above non-party union shall be deducted in the calculation of gains from the transfer of the apartment of this case because it constitutes facility cost or improvement cost. Therefore, the judgment below is just and there is no error in the misapprehension of legal principles as otherwise pointed out.

The argument in this regard is without merit.

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)