(a) Method of calculating the actual transaction price by assets, where it is confirmed that several real estate transactions are made collectively, but it is impossible to classify each actual transaction price; and

(b) The meaning of the actual acquisition value in calculating capital gains;

(a) The amount of capital gains shall be calculated by asset transfer. In cases where the amount of capital gains is to be calculated based on the actual transaction price, where several real estate, such as land and buildings, are traded en bloc, and the actual transaction price is confirmed, but it is impossible to divide each actual transaction price, then each actual transaction price may be calculated by calculating in proportion to the standard market price by asset transfer pursuant to Article 170(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989). In such a case, where one of the actual transaction prices is unclear, it may be converted pursuant to the proviso of Article 170(1) of

(b) In calculating capital gains, the actual acquisition value refers to the actual transaction value which serves as the basis for computing the actual capital gains, and it refers to the objective exchange value at the time of acquisition, and thus, it cannot be deemed the actual acquisition value even if it is adjacent to the time of acquisition.

The proviso of Article 23(4) of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990), the proviso of Article 45(1)1 of the same Act, Article 170(1) and (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989)

A. Supreme Court Decision 92Nu5171 delivered on December 24, 1992 (Gong1993.643) (Gong11272 delivered on September 28, 1993). Supreme Court Decision 91Nu10848 delivered on May 12, 1992 (Gong1992,1913), Supreme Court Decision 92Nu2967 delivered on July 27, 1993 (Gong192,2453) (Gong193,2453)

Plaintiff 1 and three others (Attorney Jeong-il, Counsel for the plaintiff-appellant)

Busan East Tax Office et al.

Busan High Court Decision 91Gu321 delivered on December 2, 1992

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

In light of the record, the fact-finding by the court below is just and acceptable, and there is no error of law by misunderstanding facts against the rules of experience or rules of evidence such as theory of lawsuit.

According to Articles 23(4) (proviso) and 45(1)1 (proviso) of the Income Tax Act (amended by Act No. 4281, Dec. 31, 1990; hereinafter the same shall apply), Article 170(4)2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989; hereinafter the same shall apply), where it is possible to confirm the actual transaction value at the time of transfer or acquisition of real estate in transactions designated by the Commissioner of the National Tax Service as necessary to restrain the speculation of real estate over a certain scale prescribed by the Commissioner of the National Tax Service, it shall be determined based on the actual transaction value as an exception to the principle of the standard market price, and Article 72(3)5 of the Regulations on the Investigation of Property Taxes (amended by Act No. 4281, Dec. 31, 190; hereinafter the same shall apply) provides for one of the above exceptions.

The judgment of the court below to the same purport is just and there is no error of law such as theory of lawsuit.

On the other hand, since the transfer income amount shall be calculated by asset transfer, in case where several real estate transactions, such as land and buildings, are to be confirmed in accordance with the actual transaction price, but it is impossible to divide each actual transaction price in proportion to the standard market price by asset transfer pursuant to Article 170(2) of the Decree. In this case, in case where one of the actual transaction price is unclear, it can be converted pursuant to the proviso of Article 170(1) of the Decree based on the actual transaction price of the other divided assets. Thus, the judgment of the court below that the taxation of this case is legitimate, which calculated transfer margin based on the above method as calculated based on the transfer price, is erroneous in calculating transfer margin based on the standard market price for the plaintiff 1 and the plaintiff 2. However, according to the records, since the tax amount is clearly within the scope of the actual transfer price and the amount calculated based on the acquisition price converted as above, it cannot be deemed that there is an error of law that affected the conclusion of the judgment.

In addition, in calculating capital gains, the actual acquisition value refers to the actual transaction value, which serves as the basis for calculating the actual capital gains, and it does not refer to the objective exchange value at the time of acquisition, and even if the market price is close to the time of acquisition, it cannot be viewed as the actual acquisition value. Therefore, the judgment below is just and there is no error in the misapprehension of legal principles such as theory of lawsuit

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)