[증여세부과처분취소][공1987.2.1.(793),172]
(a) Where a supplementary evaluation method is selected under Article 5 (2) through (5) of the Enforcement Decree of the Inheritance Tax Act, and the burden of proof concerning the reasons therefor;
B. Character of the basic rules of inheritance tax
A. The burden of proving that the assessment of inherited property by the method stipulated in Article 5(2) through (5) of the Enforcement Decree of the Inheritance Tax Act is a supplementary assessment method that can be selected only when the market price at the time of commencement of the inheritance or when it is difficult to calculate the market price at the time of the commencement of the inheritance and there was no need to select a supplementary assessment method because it is difficult to compute the market price.
B. The general rule of inheritance tax is merely a representative case where the scope of the market price stipulated in the former part of Article 5(2) of the Enforcement Decree of the Inheritance Tax Act is determined to be the market price of inherited property. Thus, it cannot be concluded that the market price is difficult to be calculated just because it does not fall under any of the following subparagraphs.
(a)Articles 5(2), 5(3), 5(4), and 5(5) of the Enforcement Decree of the Inheritance Tax Act, Article 27 of the Administrative Litigation Act;
A. Supreme Court Decision 84Nu322 delivered on November 27, 1984, 84Nu670 delivered on March 12, 1985
[Judgment of the court below]
Gangwon-gu Director of the District Office
Seoul High Court Decision 86Gu127 delivered on July 25, 1986
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
The assessment of inherited property by the method stipulated in Article 5 (2) through (5) of the Enforcement Decree of the Inheritance Tax Act is a supplementary assessment method that can be selected only when it is difficult to calculate the market price at the time of commencement of the inheritance or when it is difficult to calculate the market price at the time of the commencement of the inheritance (see Supreme Court Decision 84Nu322, Nov. 27, 1984). The burden of proving that there was no need to select a supplementary assessment method because it is difficult to calculate the market price is difficult to prove the legality of the taxation (see Supreme Court Decision 84Nu670, Mar. 12, 1985). The general rule of the inheritance tax is not only a guide on the administration of affairs inside the national tax administrative agency or the general public, but also it is merely a representative example of cases that can be seen as the market price of inherited property, so it cannot be readily concluded that it falls under the market price under any of the following subparagraphs.
In light of the record, it was difficult for the Defendant to calculate the market price at the time of imposing gift tax on the instant donated property (shared shares in land), so there was no evidence of assertion as to the fact that there was no other reason to evaluate the donated property by selecting a supplementary assessment method (evaluation by a specific regional rate method) under Article 5 (2) 1 (a) of the Enforcement Decree of the Inheritance Tax Act. Thus, the lower court’s determination that the Defendant’s taxation based on the value assessed according to a specific regional rate method was unlawful is justifiable. In so doing, there was no misapprehension of the legal principle as to the time when calculating the market price of donated property is difficult, and there is no need for the court to calculate the market price of donated property by its own authority and determine the propriety of the taxation. Therefore, the lower court’s decision that did not proceed to
Ultimately, the appeal is dismissed, and the cost of appeal is assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Lee B-soo (Presiding Justice)