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(영문) 근저당권설정시의 감정가액으로 증여재산을 평가한 것이 적법한지 여부(기각)

조세심판원 조세심판 | 1999-08-23 | 국심1999부1309 | 상증

[Case Number]

National Trial 199bu1309 ( August 23, 1998)

[Items]

Donations

[Types of Decision]

Dismissal

[Summary of Decision]

Property on which a right to collateral security has been established shall be appraised at a larger price of the value assessed in accordance with the Inheritance and Gift Tax Act and the appraisal value for creation

[Related Acts]

Article 60 of the Inheritance Tax and Gift Tax Act / The evaluation of assets created by a mortgage, etc.

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Summary of the original disposition;

The claimant was donated 1/2 (the remainder of 1/2 as a private teaching institute on the underground and the 6th floor; hereinafter referred to as "influent real estate") out of 3,013 square meters of the OOO in Busan Metropolitan City, Busan, the claimant was donated 15% of the OOOOO's share in the co-ownership (the 15% of the Claimant's share in the Claimant, the 15% of the Claimant's share in the Claimant's claim, the 15% of the OO's share in the Austria's claim, the 15% of the OO's share in the Austria's claim, the 195.3 square meters of the OO's share in the OO's site, and assessed the value of the OOO's share in the standard market price on April 28, 1997 and assessed the value of the 197 OO's share in the 1997.746.7.746.

The claimant, who is dissatisfied with this, filed an appeal on October 19, 198 and filed an appeal on February 24, 199.

2. Opinion of the petitioner and the Commissioner of the National Tax Service;

A. The claimant's assertion

On June 5, 1991, which was applied at the time of this case’s taxation, the appraisal value at the time of establishing a collateral security (price 1990.20 on December 20, 199) on the key real estate at issue at issue at the time of the disposal agency (price 3,300,000,000 square meters from the date of donation) was the value at least six years and four months prior to the date of donation; the officially assessed land price was 100,000,000 square meters from the 1996, and the annual land price fluctuations rate of Busan Metropolitan City announced by the Ministry of Construction and Transportation also decreased by 8.15% as of August 1991. Therefore, on the basis of the appraisal price higher than 1,198,117,800,000 won which is assessed by the claimant to the two appraisal agencies with credibility, the appraisal corporation should be assessed as 2,570,000 won (O), 324,000,00

(b) Opinions of the Commissioner of the National Tax Service;

Article 63 (3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the value of the property on which the right to collateral security has been established shall be the larger amount between the value assessed under Article 60 of the same Act and the value appraised by an appraisal business operator in accordance with the Act on the Publication of Land Prices and the Evaluation of Land, etc. in order to set the right to collateral security. The appraised value refers to the value appraised to set the right to collateral security on the relevant property (see, e.g., Supreme Court Decision 46014-1957, Jul. 31, 1995) regardless of the time of the appraisal (see, e.g., Supreme Court Decision 4547, Apr. 7, 194; 195, Sept. 16, 195).

The key real estate was established at the OO bank's OE branch twice on December 6, 1989 and June 5, 1991. At the time of the establishment of the right to collateral security, the OOE Appraisal Board's appraisal value was confirmed at the time of the establishment of the right to collateral security. At the time of the donation, the officially assessed individual land price was 118.5% higher than the publicly assessed individual land price at the time of the appraisal, so there was no error of the disposal agency's initial disposal of the real estate assessed as the appraised

3. Hearing and determination

A. Key issue

It is reasonable to evaluate the donated property with the appraisal value at the time of establishing the right to collateral security at the time of 6 years prior to the starting date of donation.

(b) Related statutes;

Article 60 (1) of the Inheritance Tax and Gift Tax Act (wholly amended by Act No. 5193 of Dec. 30, 1996) provides that "the value of property on which inheritance tax or gift tax is levied pursuant to this Act shall be the market price as of the date of commencing the inheritance or the date of donation (hereinafter referred to as the "date of appraisal"). In this case, the value assessed by the method of appraisal provided for in Article 63 (1) 1 (a) and (b) (excluding the case falling under the provisions of Article 63 (2)) shall be deemed as the market price," and Article 61 (1) of the same Act provides that "The evaluation of the right to real estate and real estate shall be based on the methods provided for

1. Land:

The officially assessed individual land price under the Act on the Publication of Land Prices and Evaluation of Land, etc. (hereinafter referred to as the "individual land price").

2. Buildings:

Article 66 of the same Act provides that "the value of the property established by the standard market price determined by the Presidential Decree" shall be the value of the property, and the special case for the appraisal of the property established by the mortgage, etc. shall be the value of the property, notwithstanding the provisions of Article 60, which is larger than the value assessed by the Presidential Decree on the basis of the amount of claims secured by the property, etc.

1. Property whose mortgage or pledge is settled;

2. Transferred property;

3. Property registered for lease on a deposit basis;

4. The term “property, the lease contract of which is de facto concluded or the lease of which is registered.”

"The value appraised under the conditions as prescribed by Presidential Decree" in Article 66 of the Enforcement Decree of the same Act means the amount falling under any of the following subparagraphs:

1. The value of the property on which a mortgage (excluding joint mortgage and mortgage) is created, shall be the amount of the claim secured by the relevant property;

2. The value of the property for which a common property right is established, shall be the amount of the claim secured by the property, calculated proportionally by its value as of the base date of appraisal of the property jointly mortgaged

3. Where there exist values (where there exist 2 or more appraisal values, it shall be the larger price) appraised by a certified public appraiser in accordance with the Act on the Public Notice of Values and Evaluation of Land, etc. to establish the relevant right to collateral security, the value thereof;

4. The value of the pledged property and the property transferred for security shall be the amount of claims secured by the relevant property.

5. The value of property registered for lease on a deposit basis shall be the registered deposit money.

6. The value of the property, the lease contract of which is de facto concluded or the lease of which is registered, shall be determined by dividing the rent for one year by the rate as determined by the Ordinance of the Prime Minister and the rental deposit.

C. Facts and determination

① In light of the facts, the pertinent real estate was established at the OO bank's OO bank's OE branch twice on December 6, 1989 and June 5, 191. At the time of the establishment of the said right to collateral security, the appraisal value of the OO appraiser at the time of the establishment of the right to collateral security (price 190.20, December 26, 1990 at the time of preparation) is confirmed by the certified copy of the real estate register and the review data presented by the disposition authority. The claimant assessed the key real estate as the standard market price, and reported gift tax on April 28, 1997, and the disposition authority assessed as the appraised value at the time of establishment of collateral security higher than the standard market price, and there is no dispute between the claimant and the

② As indicated below, the claimant asserts that: (a) the officially assessed individual land price has fallen from KRW 3,300,000,000 in 192 to KRW 3,200,000 in 196; (b) the annual land price fluctuations rate of KRW 8.15% in Busan Metropolitan City where the pertinent real estate is located; (c) the appraisal price at the time of January 1, 1999 at the time of the price of January 1, 199 should be assessed as KRW 1,198,117,80 (the amount of the claimant’s share: KRW 179,717,670) and the gift tax should be corrected.

The individual annual publication price of the divided year shall be 2,70,000,000 won in Busan-si, Busan-si, Busan-si, Busan-si, Busan-si, 1991, 2,300,000 won in 3,30,000,22.22% in 1.57% in 1992, 0.57% in 2.57% in 193, 3,230,000 in 2.12% in 6.77% in 1994, 6.70% in 6.77% in 1994 3,130,000 in 3.0,000 in 3.0,350,350.3,200,000 in 23.14% in 1996, 200.5% in 197, 200,000 in 197,2940.2% in 1030.1.2

Examining the trend of the above officially assessed individual land price as of April 9, 1997 (as of the end of 1996), 19.24% increased until the donation date (as of the end of 1996) (the land grade in this period was confirmed by the land cadastre of the head of Busan Gu issued on March 23, 1997) and the annual land price change rate of the Ministry of Construction and Transportation as of March 23, 1997 was 8.15% in Busan Metropolitan City as of the end of 1996 and 6.87% in Busan Busan Metropolitan City as of the end of 1998 (24.57% in Busan Metropolitan City as of the end of 1998 and 25.28% in Busan Metropolitan City as of the end of 1998); and

On the other hand, when comparing the appraisal values and reported values by the appraisal corporation, and the appraisal values by the OO appraiser at the time of establishing a collateral security by the claimant, they are as follows.

An appraisal corporation of the old subcommittee at the point of time of December 20, 1990, and January 12, 1999, the old subcommittee at the point of time of January 6, 1999, and the old subcommittee at the point of time of time of January 6, 1999, 73,221,000 won in the building 221,250,000 won in the building 253,123,000 won in the building 253,123,080 won in the building 816, 350 won in the building 47,634,015 won in the building 464,896,80 won in the first place, 16,083,00 won in the first place,371,306,350 won in the building,180,55,015 won in the building 178,146,000

* The land value of the key real estate x the officially assessed individual land price and the appraised value per square meter, and the building area x the standard market price and the appraised value per square meter x the applicant or the claimant presented the appraised value at the time of January 199.

③ As of June 5, 1991, the officially assessed individual land price for the real estate at issue was increased by 19.24% until 1996, and the land grade was changed from 241 to 252. The claimant presented the appraised value at the time of January 1999 by asserting that the change rate of actual land price of Busan Metropolitan City where the real estate at issue is located has decreased by 8.15% before the time of creation of the collateral security. However, the claimant presented the appraised value at the time of January 1999 by claiming that the change rate of real land price of Busan Metropolitan City was reduced by 8.15% before the time of donation. However, the disposal of the real estate at the time of donation cannot be deemed to have properly reflected in the market price at the time of donation by 24.57% as of 191, Busan Metropolitan City, Busan Special Metropolitan City's 25.28% as of 191.

D. Accordingly, this case is subject to a decision as ordered under Articles 81 and 65(1)2 of the Framework Act on National Taxes, since the request for a trial is deemed groundless.