In case of payment in kind of real estate, the time of the transfer thereof (=the time of ownership transfer registration)

The payment in kind is an essential contract established when another performance is actually conducted on behalf of the original obligation, and if another performance is a transfer of the ownership of the real estate, the existing obligation is extinguished by the establishment of the payment in kind only after the completion of the registration of ownership transfer. Thus, even if there is an agreement between the parties on the payment in kind, the real estate is transferred at a cost and its payment is made.

Article 27 of the Income Tax Act, Article 53 of the Enforcement Decree of the Income Tax Act

Attorney Lee Jong-sung et al., Counsel for the defendant-appellant

Head of North Busan District Tax Office

Busan High Court Decision 89Gu1452 delivered on June 15, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

(1) According to the judgment of the court below, on February 28, 1979, the plaintiff entered into a payment contract with the plaintiff to transfer the real estate listed in the separate sheet No. 1 among the real estate of this case to the payment in lieu of the plaintiff's debt of KRW 253,00,000 for the debt of KRW 253,00,000, and on March 24, 1980, the plaintiff entered into a payment in lieu of the plaintiff's debt of KRW 80,130,000 for the debt of KRW 80,000 for the non-party non-party 2's non-party 1/2 of the real estate of this case into a payment in lieu of the payment in lieu of the payment in lieu of the debt of KRW 253,00,00,00, respectively, and the plaintiff entered into a payment contract with the plaintiff to transfer the real estate in the separate sheet No. 2's name. 1/2 of this case.

(2) According to Article 27 (1) and (2) of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), in calculating gains from the transfer of assets, the transfer time of assets is considered to be the date of the receipt or transfer of part of the payment other than the down payment, i.e., cash or valuables similar to the intermediate payment, or the receipt of valuables. However, Article 27 (a) of the Income Tax Act was amended by Act No. 3576 of Dec. 31, 1982 by Presidential Decree No. 10977 of Dec. 31, 1982, Article 53 (1) of the Enforcement Decree of the Income Tax Act was considered to be the date of liquidation of the price of the relevant assets, and Article 3 of the same Addenda provides that the first transfer of the real estate after this Act enters into force (excluding the transfer time that became effective before this Act), and thus, the transfer registration of ownership between the other parties is established on behalf of the payment.

Therefore, in this case where the plaintiff agreed on February 28, 1979 and March 24, 1980 prior to the amendment of the Income Tax Act such as the non-party spawn and the non-party spawn and the non-party spawn and the non-party spawn et al., and accordingly, the transfer registration was made on December 8, 1986, after the amendment of the above Act due to payment in kind. In light of the provisions of Article 27 of the former Income Tax Act, the transfer time of the real estate in this case is not the date of payment in kind, but the transfer registration date of ownership transfer, including the down payment and the intermediate payment, which is the date of payment in kind, shall be the date of the transfer registration, which is December 8, 1986.

The court below erred by applying Article 27 of the Income Tax Act prior to the amendment in finding the time of transfer of the above real estate as December 8, 1986. However, even under the Income Tax Act prior to the amendment, the time of transfer of the pertinent real estate is December 8, 1986, as seen above. Thus, it is justified in its conclusion to reject the plaintiff's claim of expiration of prescription by deeming that the statute of limitations of the right to impose imposition upon the instant real estate should be calculated on the basis of the statute of limitations.

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.

Justices Park Yong-dong (Presiding Justice)