A. Whether the transfer of ownership of real estate by the discretionary auction procedure constitutes “transfer” subject to capital gains tax (affirmative)

B. Whether the grounds of appeal asserted new facts are appropriate only in the final appeal

A. According to Article 4(3) of the former Income Tax Act (amended by Presidential Decree No. 1978. Dec. 5, 1978), the term “transfer subject to transfer income tax” means that the ownership of the relevant asset is actually transferred at a price due to sale, exchange, investment in kind in a corporation, etc. regardless of the registration of the assets. Thus, even where the ownership of real estate is actually transferred at a price by the voluntary auction procedure

B. Of the grounds of appeal, the part of the disposition imposing the transfer income tax in this case is erroneous as not deducting the facility cost and improvement cost from the necessary expense, and it is apparent that there was no new fact alleged in the court of final appeal only at the court of final appeal, which cannot be a legitimate

A. Article 4(3) of the former Income Tax Act (Act No. 310, Dec. 5, 1978); Article 23(b) of the Income Tax Act; Articles 1 and 14 of the Administrative Litigation Act; Article 402 of the Civil Procedure Act

Plaintiff

Head of Seodaemun Tax Office

Seoul High Court Decision 82Gu827 delivered on April 20, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

According to Article 4 (3) of the Income Tax Act (amended by Act No. 3098 of Dec. 5, 1978), "transfer subject to transfer income tax", which was enforced at the time of the occurrence of taxation requirement of this case, means that the ownership of real estate is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc. regardless of registration of assets, and thus, transfer of real estate is subject to transfer income tax even in the same case as this case where the ownership of real estate is actually transferred for price due to a voluntary auction procedure. Further, according to Articles 23 (2), 45, and 170 (1) of the above Income Tax Act, and Article 170 (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 9229 of Dec. 30, 1978), if the transferor of assets fails to make a preliminary return or final return on transfer of the prescribed assets, it is unclear that such transfer gains cannot be calculated based on the acquisition price and transfer price of the assets. From this point of view, the court below's error of law.

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

Justices Shin Jong-young (Presiding Justice)