[양도소득세등부과처분취소][공1993.1.1.(935),158]
Whether the inheritance tax may be levied by recognizing the transferred property as owned by the original transferor in accordance with the deemed donation provision under Article 34(2) of the Inheritance Tax Act (negative)
According to Article 34(2) of the Inheritance Tax Act, in case where a person in a special relationship transfers any property transferred to a person in a special relationship as prescribed by the Presidential Decree, to his spouse or lineal ascendant within three years from the date of transfer, the original transferor shall be deemed to have donated the property at the time of transfer to his spouse or lineal ascendant. The purport of the provision is merely that the transfer is regarded as a donation, and it does not recognize the transferred property as owned by the original transferor.
Article 34(2) of the Inheritance Tax Act
[Defendant-Appellee] Plaintiff 1 et al.
The director of the tax office.
Seoul High Court Decision 90Gu23771 delivered on January 23, 1992
All appeals are dismissed.
The costs of appeal shall be assessed against the plaintiff and each defendant.
1. As to the Plaintiff’s ground of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed by the Plaintiff)
The court below acknowledged that the plaintiff purchased two parcels of Gangnam-gu Seoul (No. 1 omitted) and (No. 2 omitted) prior to the merger on June 11, 1985 from Non-party 1, and held that the disposition imposing the transfer income tax of this case was lawful, which recognized it as the real acquisition value. In the case where the actual transaction price under Article 170 (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) is confirmed, it does not necessarily require a sales contract or receipt as supporting the actual transaction price. Thus, the court below's decision that recognized the actual acquisition price of the land of this case by the non-party 1's written confirmation and testimony is just, and there is no violation of the rules of evidence or misapprehension of legal principles, such as the theory of lawsuit. The argument is without merit.
2. As to the grounds of appeal by Defendant Litigation Performers
(1) According to Article 80-2 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 12783, Aug. 24, 1989), the head of a Si/Gun shall set a grade of the land according to its land category, dignity, or circumstances and record it in the land cadastre, the forestry cadastral book, and the tax ledger. If the land whose grade is determined has a significant change in its land category, dignity, or circumstances, he shall determine the grade of the land in accordance with the grade of the land similar to its land category, dignity, and circumstances. According to Article 42(2) of the former Enforcement Rule of the Income Tax Act (amended by Presidential Decree No. 1499, Nov. 13, 1989); if the head of a Si/Gun intends to set a grade of the land or determine it according to the grade of the land, he/she shall obtain advice from the head of the Eup/Myeon, the head of the Si/Gun, and the owner of the land at the same time and at the same time determine the grade of the land within 20 days before the determination date.
According to the records, as acknowledged by the court below, after the land grade was modified to 196 level around August 1986 with respect to the above ( Address 1, 2 omitted) land, the land grade was not modified until it was combined with the above ( Address 3 omitted) land on December 2, 1988. The head of Gangnam-gu Office, when combining the above ( Address 1, 2 omitted) land into the above ( Address 3 omitted), there was no evidence suggesting that the above ( Address 1, 2 omitted) land was transferred to the land cadastre and that the land grade was changed until the time of transfer.
Therefore, the land grade at the time of the transfer of the above ( Address 1, 2 omitted) portion corresponding to both lands shall be 196 grade with the land grade prior to the annexation, and in converting the acquisition value of the part corresponding to the transferred shares among the above lands, the land grade prior to the annexation shall be applied to the land grade at the time of the transfer. Such purport of the judgment below is just, and there is no error in the misapprehension of legal principles as to the principle of the single grade of land,
(2) According to Article 34(2) of the Inheritance Tax Act, in case where a person in a special relationship transfers any property transferred to a person in a special relationship as determined by the Presidential Decree, to his spouse or lineal ascendant within three years from the date of transfer, the original transferor shall be deemed to have directly donated the property at the time of transfer to his spouse or lineal ascendant. The purport of the provision is merely that the transfer is deemed a donation, and it does not recognize the transferred property as owned by the original transferor.
Based on these legal principles, the lower court’s determination that the Plaintiff’s 5/100 portion of the land in Gangnam-gu Seoul ( Address 3 omitted) before the merger that was transferred from Nonparty 2 was unlawful on the ground that the Plaintiff’s 5/100 portion of the land was not recognized as the property owned at the time of death of Nonparty 3, the Plaintiff’s wife, is justifiable, and it cannot be said that there was an error of misapprehension of legal principles
All appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.