The method of calculating the acquisition value of assets whose acquisition time is obscure shall be the first in first in order.

If the acquiring time of transferred asset is unclear, it is legitimate to regard the first acquired stocks as first transferred in accordance with the provision that the asset first acquired is considered to have been first transferred, and to calculate the gains on transfer.

Article 162 of the Enforcement Decree of the Income Tax Act: Time of Transfer or Acquisition

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 98 of the Income Tax Act provides that the time of acquisition and transfer of the asset shall be determined by the Presidential Decree in calculating gains from transfer of the asset's participation. Article 162 of the Enforcement Decree of the Income Tax Act (hereinafter referred to as the "Enforcement Decree of the Act") delegated by him provides for the time of acquisition and transfer of the asset in specific cases under paragraphs (1) through (4) and provides for the time of acquisition and transfer of the asset, if the time of acquisition of the transferred asset is unclear in applying paragraphs (5) through (4), it shall be deemed that the asset first acquired is first transferred. According to the reasoning of the judgment below, the court below determined that the Plaintiff's transfer of the asset first acquired from June 5, 1997 to July 5, 1999 by comprehensively taking into account the relevant employment evidence, was lawful in light of the law and the law and the law and the law and the law and the law and the law and the law and the law and the law and the record concerning the transfer and acquisition of the asset first acquired by the Plaintiff.

2. Regarding ground of appeal No. 2

Article 94 subparag. 3 of the former Income Tax Act (amended by Act No. 6292 of Dec. 29, 2000) provides that income derived from the transfer of stocks listed on the Korea Stock Exchange (hereinafter referred to as the "listed stocks' period") which is prescribed by the Presidential Decree shall be subject to capital gains tax. Article 157 subparag. 1 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 17032 of Dec. 29, 2000; hereinafter referred to as the "Enforcement Decree") delegated by the stockholders shall be subject to capital gains tax. Article 97 subparag. 3 of the former Enforcement Decree of the Income Tax Act provides that income generated from the transfer of 3/10 or more of the total stocks of the relevant corporation as of the end of the business year immediately preceding that whereto belongs the transfer date of listed stocks shall be subject to capital gains tax, but it shall not be deemed that the transfer of stocks after the date falls short of 3/100 as of the end of the immediately preceding business year is unreasonable or unreasonable.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation of Article 157 (4) 1 of the former Enforcement Decree.

3. Conclusion

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.