The date of transfer, such as transfer of ownership, shall be deemed to be the date of transfer;

Unless there is any evidence proving that the purchase price for land and buildings has been fully settled, the date of liquidation of the price for the land and buildings in this case shall be deemed unclear and the date of transfer, such as transfer of ownership, shall be deemed reasonable.

Article 98 of the Income Tax Act: Time of Transfer or Acquisition

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's imposition of capital gains tax of KRW 127,446,180 against the plaintiff on May 2, 2005 shall be revoked.

1. Details of the disposition;

The court's reasoning concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for the parts written or added by the court under Paragraph (2) below, and therefore, this case is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Parts used or added;

(a) Forms 3 through 16 of the judgment of the first instance court shall be followed by the following:

“Third, the Plaintiff borrowed KRW 140,000,000 in total from 4 times from March 31, 1991 to December 31, 1991. The Plaintiff received the payment of KRW 456,70,000 [326,700,000,000 in total as contract deposit amount [3260,000,000 in total] from ○○○○○○ by offsetting the remainder of the obligation to return the lease deposit amount of KRW 10,000 from the Plaintiff’s obligation to return the borrowed money after deducting the obligation to return KRW 10,00,000 from the obligation to return the borrowed money.”

(b) On the 4th page 20, the phrase “the evidence No. 1” has been written with the words “the testimony of the row of evidence No. 1 and the witness Kim ○○○”.

(c) Forms 1 through 4 have been cut down by:

③ The Plaintiff asserted that, instead of the down payment of KRW 315,00,000 among the down payment of the instant land and building, Kim○○ acquired the instant exchanged real estate, which was held in title by Kim○○○, under the Plaintiff’s name of the Plaintiff’s birth largest ○○○○, from among the down payment of the down payment of the instant land and building, the Plaintiff alleged that Kim○○ acquired the instant exchanged real estate in the name of the Plaintiff’s birth

(d)on the 6th page, the following shall be added to:

Noh. The plaintiff asserts that 11,700,000 won, which was held by the tenant of the exchange real estate in this case in lieu of Kim○○○, was offset against the down payment claim, but there is no evidence to prove that the plaintiff was holding the car in this case in lieu of Kim○○, and therefore it is difficult to believe the above assertion.

[Seoul Administrative Court 2006Gudan9385 ( May 30, 2008)]

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of capital gains tax of KRW 127,446,180 on May 2, 2005 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. On December 14, 1974, the Plaintiff acquired and owned ○○○○○○○-dong, ○○○○○○○, 265.5 square meters (hereinafter “instant land”) on and around 193, and newly constructed a single-story neighborhood living facility (store) on the instant land (hereinafter “instant building”) around 1993, and completed the registration for the preservation of ownership on June 14, 1993.

B. After that, on June 27, 2002, the registration of transfer of ownership in the name of Kim○ was made on the land and building in this case on September 24, 1992.

C. On June 18, 2002, the Plaintiff reported the real estate transfer to the Defendant and reported the liquidation date of the transfer price of the instant land and buildings on December 30, 1993. As of the date of the report of transfer, the Plaintiff reported to the effect that the taxpayer was extinguished since the exclusion period of the assessment of national taxes under Article 26-2(1)2 of the Framework Act on National Taxes (7 years from the date on which national taxes can be imposed) was already Do, as of

D. On May 2, 2005, the Defendant: (a) as of June 27, 2002, the date of liquidation of the transfer price of the instant land and buildings is unclear; (b) accordingly, the said transfer date shall be deemed to be June 27, 2002, which is the date of ownership transfer registration; (c) accordingly, on the ground that the exclusion period of national tax assessment has not yet expired, the instant disposition was rendered to impose the tax amount of KRW 127,46,180, which is the amount of tax on the transfer margin of KRW 502,946,310, the standard market price at the time of transfer (in the case of the instant land, the conversion standard market price at the time of January 1, 1985) calculated by deducting KRW 169,643,459, necessary expenses, and KRW 5,089,303, which is the amount of tax on

[Ground of recognition] Evidence No. 1-2, Evidence No. 2-1, Evidence No. 2-2, Evidence No. 1-2, Evidence No. 1-1, 2, 3, and Evidence No. 2-1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The main points of the arguments are as follows.

① On September 24, 1992, the Plaintiff sold the instant land to KRW 720,00,000,000; however, the Plaintiff concluded a sales contract with the content that the Plaintiff would receive the remainder of KRW 263,30,000 on December 30, 1993.

② From around 1988, 008, ○○○○○○-dong, Seoul, ○○○○○○-○ and the second floor building (hereinafter “instant exchange real estate”) acquired the Plaintiff’s name, and partially, at the time of the conclusion of the said sales contract, leased to the Plaintiff KRW 10,000,000 in total deposit amount of KRW 35,000,000. The Plaintiff acquired the said real estate in lieu of receiving KRW 315,00,000 among the down payment, and received KRW 11,70,000 in total from the lessee to offset the down payment amount of KRW 326,70,000 by offsetting the down payment amount of KRW 11,70,000 (315,000,000 +11,700,000).

③ On the other hand, on March 31, 1991, the Plaintiff borrowed KRW 100,000,000 from Kim○○○○, 140,000,000. The Plaintiff offsets 140,000,000 with the obligation to return the principal and interest, but offsets the Plaintiff’s obligation to return the deposit by deducting KRW 10,00,000,000, which is the total amount of the contract deposit, and thereby, the Plaintiff was paid KRW 456,70,000 (326,70,000 +140,000-10,000,000, which is the total amount of the contract deposit).

④ From October 8, 1992 to December 27, 1993, the Plaintiff received 263,300,000 won in total by either receiving cash directly from Kim○○, receiving the deposit or rent of the instant building, or settling the accounts of the credit payment of Kim○, or settling the balance into interest payment on the advance payment.

⑤ Therefore, since the purchase price for the instant land and buildings was fully liquidated on December 27, 1993, the instant disposition that deemed otherwise unlawful even if the exclusion period of the imposition of national taxes had already expired at the time of the instant disposition, notwithstanding the fact that the disposition was unlawful.

(b) Related statutes;

Article 98 of the Income Tax Act: Time of Transfer or Acquisition

In calculating gains on transfer of assets, the time of acquisition and transfer shall be determined by Presidential Decree.

By-laws No. 4803, Article 8 (Legal Fiction concerning the acquisition time of transferred assets)

Assets under subparagraph 1 of Article 94, those acquired before December 31, 1984, shall be deemed to have been acquired on January 1, 1985, and with respect to the assets under subparagraphs 2 through 5 of the same Article, those as prescribed by the Presidential Decree, shall be deemed to have been acquired on the date as prescribed by the Presidential Decree.

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

(1) The time of acquisition and transfer under Article 98 of the Act shall be the date of liquidation of the price of relevant assets, except in the following cases:

1. Where the date of the settlement of price is not clear, the date of registration, receipt of registration, or transfer date entered in the register, registry, list, etc.;

C. Determination

(1) Although evidence that corresponds to the fact that the transfer price of the instant land and building was liquidated on December 27, 1993 as alleged by the Plaintiff, it is difficult to believe it in light of the following points, and in light of the following, there is insufficient evidence to acknowledge it differently, solely on the basis of the evidence Nos. 3, 4-1 through 4, 5-1, 5-2, 6-1 through 4, 7, 8-1 through 67, 8-9, 10-1 through 39, 10-1, 14, 15-1 through 15, 17-1, 2, 18-1, 2-2, 18-1, 2-2, 18-1, 3-1, 39, 10-1 through 14, 15-1, 15, 16-1 through 15, 17-2, and 18-2.

① Comprehensively taking account of the overall purport of the pleadings as to the evidence No. 18-1 and No. 2, the registration of ownership transfer on the instant land and building is against the empirical rule that Kim○○ filed a lawsuit claiming ownership transfer against the Plaintiff on or around 2002, and that the Plaintiff had completed the registration of ownership transfer between the Plaintiff and Kim○○○ on May 14, 2002. In light of the above, it is reasonable to deem that Kim○ was unable to receive documents necessary for the registration of ownership transfer from the Plaintiff at the time of the liquidation of the purchase price alleged by the Plaintiff, and that the documents necessary for the registration of ownership transfer were not received even after the remainder payment was made. In addition, even if the purchase price was settled, it is inconsistent with the common sense that Kim○○○, the buyer, did not file a lawsuit claiming ownership transfer transfer registration for the period remaining eight years and six months, but rather, it was unreasonable to deem that the ownership transfer registration was delayed because there was no dispute over whether the price was settled at least between the Plaintiff and the buyer and the seller.

② The Plaintiff asserts that the Plaintiff was paid an amount equivalent to the value of the instant exchanged real estate by having the Plaintiff acquire the instant exchanged real estate on the day of the sales contract. However, in full view of the overall purport of the pleadings in the items as indicated in the evidence Nos. 5-1, 2, and 2-7 of the evidence Nos. 5-2, and the purport of the entire pleadings, it can be acknowledged that, after the purchase and sale of the instant exchanged real estate, the measures to secure any right to the instant exchanged real estate have not been taken after the lapse of 7 years from the date of the conclusion of the sales contract, and on December 27, 1999, after the lapse of 7 years from the time of the conclusion of the sales contract, the Plaintiff’s transfer of ownership was completed in the △△△△△△△△△△△△ on the grounds of sale and purchase as of November 30, 199. In light of the registration relationship with the instant exchanged real estate, it is difficult

③ According to the Plaintiff’s assertion, the Plaintiff borrowed KRW 100,000,000 from Kim○○ on March 31, 1991, and recognized the obligation to repay the principal and interest as KRW 140,000 on September 24, 1992, set off the obligation to repay the principal and interest within the amount equal to the contract deposit claim. Therefore, it is difficult to believe that the interest during the period of one year and six months from the date of borrowing reaches 40% of the principal amount.

④ According to the Plaintiff’s assertion, even though the agreed payment date of the remainder was December 30, 1993, it is difficult to believe that Kim○ opened the remainder payment from October 8, 1992 to December 27, 1993, which was much earlier than that of the Plaintiff, and thus, it is also difficult to believe that the rent derived from the instant building prior to the payment of the purchase price belongs to the Plaintiff. However, it is reasonable to deem that the said rent falls under the Plaintiff. However, in the instant case where there is no specific agreement or settlement details as to the interest on the advance payment, it is difficult to believe that part of the remainder was settled as the interest on the advance payment.

(2) The instant disposition is lawful, and the Plaintiff’s assertion is without merit, inasmuch as there is no evidence to prove that the purchase price for the instant land and building was fully liquidated on December 27, 1993 through December 30, 193.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Supreme Court Decision 2008Du9515 (Law No. 21, 2008)]

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined. However, the grounds of appeal by the appellant are not included in the grounds provided for in each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per Disposition by