Seoul Administrative Court 2007Gudan9139 ( October 14, 2008)

National High Court 2007west0392 (Law No. 2007.04.20)

The date of acquisition when there is a lawsuit disputing a ruling to revoke the re-auction order after payment of the successful bid price.

Where the successful bidder has paid the successful bid price after the decision of re-auction, the effect of the decision of re-auction or the decision of permission of auction is suspended or lost by the decision of re-auction, so the date of full payment of the successful bid price shall be

The contents of the decision shall be the same as attached.

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 imposition of capital gains tax of KRW 1,351,614,030 against the plaintiff on October 9, 2006 by the defendant shall be revoked.

The reasoning for the court’s explanation concerning this case is as stated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since it is identical to the reasoning of the judgment of the court of first instance.

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and it is so dismissed and it is so decided as per Disposition.

[Seoul Administrative Court 2007Gudan9139, 2008)]

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 1,351,614,030 for the Plaintiff on October 9, 2006 shall be revoked.

1. Details of the disposition;

(a) Particulars, etc. of acquiring real estate;

(1) On May 30, 198, ○ District Court ○○○○○○○○○○○○ around 88, 198, rendered a voluntary decision of commencement of auction on the real estate listed in the separate sheet (hereinafter “instant real estate”). The Plaintiff filed a reappeal on October 16, 1989 at the auction price of KRW 3,01,00,000 in the name of Nonparty Kim○○ on the auction date, and on October 19, 1989, Kim○ was determined as the highest bidder, and was sentenced to a decision of permission of auction on the auction date on October 19, 198. The interested parties filed an immediate appeal against the decision of permission of auction, but on January 12, 199, the appellate court (○○ Civil Court 89,000) rendered a final decision of rejection on May 3, 199 (Supreme Court Decision 90MaMa90, Sept. 9, 199).

(2) Accordingly, the auction court designated the payment date on November 15, 1990, but Kim ○ issued an order of re-auction on November 20, 1990, which did not pay the price, on which the date of re-auction was set on January 14, 1991 but the auction was impossible due to an interested party's disturbance on the date of re-auction, and again, on February 11, 1990, the date of re-auction was designated as the date of re-auction. On February 8, 1991, which was three days prior to the date of auction, Kim ○ paid the price, interest, and procedural expenses with the permission of the auction court, and accordingly, the auction court decided to revoke the re-auction order.

(3) On March 28, 191, the non-party ○○ corporation, who is an interested party, filed an objection against the ruling of revocation of re-auction order and rendered a ruling of dismissal by an auction court on March 28, 191. Accordingly, the decision of dismissal was made on July 5, 191 that "the revocation of the original decision and the ruling of revocation of re-auction order" was revoked on July 5, 1991, but the second appellate court (Supreme Court 91Ma○○) rendered a ruling of June 9, 192 that "the original decision shall be reversed and remanded." Accordingly, the appellate court (○○○ District Court 92Ra○○○○) which was remanded on April 28, 1993, rendered a ruling of dismissal, and that decision became final and conclusive at that time.

(4) On April 25, 1996, the Plaintiff completed the registration of transfer of ownership on the instant real estate to Kim○○○ on the ground of successful bid. On June 25, 1996, the Plaintiff terminated the title trust on the instant real estate and completed the registration of transfer of ownership on the ground of the termination of the said title trust on the instant real estate on June 27, 1996.

(b) Imposition of capital gains tax;

On June 29, 2004, the Plaintiff transferred the instant real estate to ○○ Construction Co., Ltd., and thereafter calculated gains from transfer by applying the standard market price at that time as of April 25, 1996, the date of acquisition of the instant real estate, which is the date of registration of ownership transfer, as the date of acquisition of the instant real estate, and filed a report on capital gains tax to the Defendant. Accordingly, the Defendant: (a) on February 8, 1991, the date of payment of the successful bid price, the date of acquisition is deemed to have been acquired; and (b) on October 16, 2006, calculated gains from transfer by applying the standard market price at that time to the acquisition price of the instant real estate; and (c) on October 16, 2006, issued the instant disposition to the Plaintiff correcting and notify KRW 1

[Reasons for Recognition] Unsatisfy, Gap 1 to 11, Eul 1 (including paper numbers), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Although the plaintiff paid the price of the auction on February 8, 191 after the successful bidder was awarded the real estate in the name of Kim○○, the successful bidder was unable to register the ownership of the real estate in this case or use or profit from the real estate in this case while the procedure of appeal, reappeal, etc. disputing the ruling of revocation of re-auction order, and in particular, at the appellate court on July 5, 1991, the decision of cancellation of the original decision and the ruling of revocation of re-auction order was possible. In addition, in order to acquire the ownership of the real estate in the auction procedure, the previous decision of approval of the successful bidder shall be confirmed and the auction price shall be paid. However, if the successful bidder did not pay the price on the date of payment, and the previous decision of approval of the successful bidder shall be invalidated if the successful bidder paid the price, etc. three days before the date of re-auction order, but the auction court shall revoke the second auction order, and if the ruling of revocation becomes final and conclusive, the successful bidder shall obtain the ownership of the real estate in this case.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) In a case where an immovable property is sold through an auction procedure to exercise a security right, the successful bidder shall acquire the ownership when the successful bidder completely pays the successful bid price after the decision of permission becomes final and conclusive, and the date when the successful bidder completely pays the successful bid price shall be the time when the property is transferred and the time when the property is acquired under the Income Tax Act (see, e.g., Supreme Court Decisions 96Nu1570, Jul. 8, 1997); however, in a case where the validity of the decision of permission of successful bidder is lost or the decision of permission of successful bidder becomes final and conclusive due to a certain reason (such as where an interested party files an appeal through the completion of the successful bid price and an application for the completion of the bid price is permitted at the appellate court) after the decision of permission of successful bidder is final and conclusive, the successful bidder shall not be deemed to have paid the successful bid price lawfully, and thus, the transfer of property under the Income Tax Act has not been made without acquiring the ownership (see, e.g., Supreme Court en banc Order 2007Ma14, Nov.

(2) On November 20, 1990, the decision of approval of the auction which was finalized on May 3, 1990 in this case became null and void due to the second auction order issued by the auction court. On February 8, 1991, the auction court rendered a decision of revocation of the second auction order due to payment of the auction price, and the decision of revocation of the second auction becomes effective immediately because it is not a trial that is immediately subject to appeal and is not a valid judgment, and it is not a judgment that is only final and conclusive. Thus, the decision of approval of the auction which became null and void by the second auction order (Article 517 (1) of the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002; hereinafter the same) was restored by the ruling of revocation of the second auction order.

On the other hand, ○○○○ Co., Ltd. filed an objection by a ruling of revocation of re-auction order, and this objection is an objection to enforcement, so long as the auction court did not order a temporary suspension of compulsory execution while rendering a judgment on an objection, it does not merely suspend or lose the validity of a ruling of revocation of re-auction order or a ruling of permission of auction (Article 1 and 2 of the former Act). In addition, ○○ Co., Ltd filed an immediate appeal against a ruling of rejection of an objection by the auction court (Article 4 of the former Act) (Article 1 and 2 of the former Act). However, as long as the ruling was reversed by the second appellate court, it did not suspend or lose the validity of the ruling of revocation of re-auction order or the ruling of

Therefore, the effect of the decision of permission of auction was restored by the ruling of revocation of re-auction on February 8, 1991, and Kim ○○ acquired the ownership of the real estate in this case by paying the successful bid price, etc. Ultimately, the effect of the decision of permission of auction is restored by the ruling of revocation of re-auction, and the decision of permission of auction is restored by the ruling of revocation of re-auction, and the acquisition date of the real estate in this case on February 8, 191, where the successful bid price is fully paid. Therefore, the dispositions of the Defendant on the same premise

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.

List of Real Estate

1. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ 19С;

2. ○○○○○○○○○○○○○○○-○○ Large 3,279 square meters.

3. ○○○○○○○○○○○○-○, ○○○○, and both on the ground.

Two-story stores and houses built of reinforced concrete structure;

1st floor 2131.32 square meters ophones

A store and a house of 146.25 square meters with two floors, shall be closed.

Related statutes

former Income Tax Act (amended by Act No. 7289 of Dec. 31, 2004)

○ Time of transfer or acquisition

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

Enforcement Decree of the former Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005)

○ 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 (excluding the capital gains tax and the additional tax of capital gains tax if an agreement is made by the transferee to bear the capital gains tax and the additional tax of capital gains tax on the transfer of relevant assets), except in the following cases:

1. Where the date on which the price is settled is not certain, the date of registration, receipt of registration, or transfer date entered in the register, registry, list, etc.;

2. Date of receipt of the registration entered in the register, register, list, etc. where the transfer of ownership (including the registration and the opening of the name) has been made before the price is settled;

former Civil Procedure Act (wholly amended by Act No. 6626 of January 26, 2002)

○ Objection against the grant of execution clause

(2) The presiding judge may make a provisional disposition prior to the judgment. In particular, he/she may order a temporary suspension of compulsory execution with or without having the debtor furnished a security, or may order a continuation of such execution with having the creditor furnished a security.

○ Objection against the enforcement

(1) An objection may be raised to the court against the judgment by the court of execution on the procedures for compulsory execution against which no immediate appeal may be raised, against the disposition by the execution officer, and against other execution procedures to be observed by the execution officer.

(2) The court may issue an order under Article 484 (2).

(4) An immediate appeal may be filed against a judgment on a formal objection under paragraphs (1) and (3).

○ Effect of the decision of revocation

(1) An immediate appeal may be filed against a ruling revoking a compulsory execution procedure or against a ruling ordering an execution officer to revoke the compulsory execution procedure.

(2) A decision under paragraph (1) shall become final and conclusive.

○ Immediate Appeal

(1) An immediate appeal may be filed against a judgment on compulsory execution procedures only where any special provision exists.

○ Adjudication on Refusal of Adjudication

(1) A decision on the successful bid or on the non-permission shall be pronounced.

(2) The provisions of Articles 141 through 143, and 145 through 147 shall apply mutatis mutandis to a protocol of successful bid.

(3) The decision under paragraph (1) shall be effective.

○ Decision to grant a successful bid

(1) A decision to grant a successful bid shall state the real estate sold by auction, the price of auction permitted with the successful bidder, and shall state the conditions thereof, if the auction is awarded under special conditions of sale.

(2) The decision under paragraph (1) shall be publicly announced in the court bulletin board, in addition to the sentence.

○ Immediate Appeal by an interested party

(1) An interested party may, where he/she suffers a loss due to a decision of granting permission for adjudication, make an immediate appeal against such decision.

(2) An immediate appeal may be filed against the successful bidder or the delivery of bidder who claims the permission on successful bidding on condition other than that which has no reason to grant the permission or is indicated on the decision.

(3) In cases of paragraphs (1) and (2), the bidder who claims the permission of an adjudication shall be bound by the price of his/her bid.

○ Time of acquisition of ownership

A successful bidder shall acquire the right to an auction when he pays the successful bid price in full.

○ Reauction

(1) When the successful bidder fails to fully perform his obligation on the date of payment of price and there is no next highest bidder, the court shall order ex officio the second auction of immovables.

(2) The minimum auction price and other conditions of sale previously determined shall also apply to the procedure of re-auction.

(3) The date of re-auction shall be fixed seven days after the date of public announcement.

(4) If a successful bidder has paid the price, designated interest and procedural expenses by not later than three days prior to the date of re-auction, the procedure for re-auction shall be cancelled. In this case, if the next highest bidder has received the decision to permit the successful bid, the successful bidder who has first paid the said amount

○ Date of payment of price

(1) When a decision to grant a successful bid becomes final and conclusive, the court shall set the payment date and summon the successful bidder and the next highest bidder.

(2) A successful bidder shall pay the successful bid price on the above date.

○ Provisions Applicable Mutatis Mutandis

The provisions of Articles 600 through 666 shall apply mutatis mutandis to the auction procedure for exercising the security right to immovables.