Articles 60 (Principles of Appraisal, etc.), 61 (Appraisal of Real Estate, etc.), Article 49 (Principles of Appraisal, etc.) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

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

The grounds for the judgment of a party member are as stated in the reasoning of the judgment of the court of first instance, except for the addition of the judgment on a new argument made by the plaintiff at the trial as follows. Thus, it is cited by applying Article 8(2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure

2. Judgment on the assertion in the trial

A. The plaintiff's assertion

1) Calculation of market price of the instant land

In full view of Article 2(3) and (4) of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”), gift tax is subject to taxation, and gift refers to the gratuitous transfer of tangible or intangible property whose economic value can be calculated, and where it is deemed that gift tax has been unjustly reduced through two or more acts or transactions, it shall be deemed as a series of acts or transactions in accordance with the economic substance and the donation shall be considered as a donation.

Meanwhile, the plaintiff's husband, at the same time, was awarded a successful bid and completed the registration of transfer of ownership under his name. The plaintiff constructed the building on the land of this case with the consent ofCC and completed the registration of transfer of ownership under the name of the plaintiff on March 26, 2004, and subsequently, on November 11, 2004, donated the land of this case fromCC as mentioned above.

In light of the above facts, the property benefits donated by the Plaintiff toCC should be deemed to be the sum of the market price of the instant land donated on November 11, 2004 and the profit from using the instant land to be free of use as the site for the instant building, the Plaintiff owned the instant land from March 26, 2004 (hereinafter referred to as “free use profit”) and ②.

19,185,00 won (the market price at 343035,00 won as of the date of donation of the land of this case premised on the site) was 223,850,00 won as of the date of donation of the land of this case, taking into account the existence of the building of this case, and the market price at 223,850,00 won is 243,035,000 won (19,185,000 won + 223,850,000 won), the market price of the land of this case, donated by the Plaintiff, as of the date of donation of the land of this case, shall be calculated as 343,035,000 won (the market price of the land of this case, which was donated by the Plaintiff, was 119,185,00 won + 223,850,000 won (the acquisition price at 30,000 won).

Therefore, in determining the acquisition value of the transferred land, the transfer income tax was calculated on the basis of the market price of the land of this case calculated by the above method, considering the market price of the land of this case (the market price considering the existence of the building of this case) as the acquisition price. The disposition of this case is erroneous in calculating the market price

2) The illegality of calculating the necessary expenses to be deducted from the transfer value

In full view of the provisions of Article 97 (1) 1 (a), (b) and (4) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same), among the necessary expenses to be deducted from the transfer value in calculating gains from transfer, the acquisition value among the necessary expenses to be deducted from the transfer value shall be the actual transaction value required for the acquisition of the assets, and where it is impossible to confirm the actual transaction value, the transaction example, appraisal value, or conversion value prescribed by the Presidential Decree shall be the transaction example, appraisal value, or conversion value. In calculating the gains from the transfer of the land donated by the spouse within five years from the date of transfer, the necessary expenses to be deducted from

However, on October 9, 2009, the Plaintiff transferred the part of the transferred land of this case to DD, and on November 11, 2004, on which five years have not passed thereafter, donated the land of this case from CC, the spouse, and accordingly, necessary expenses to be deducted from the transfer value pursuant to the above legal provisions shall be based on the acquisition price at the time of CC, the spouse, and the acquisition price of this case shall be KRW 361,10,000, as seen earlier.

Therefore, in calculating the transfer income tax on the Plaintiff’s transfer land, the Defendant’s disposition of this case, which calculated the transfer income tax by deeming the market price as the acquisition value of the transferred land at the time of donation of the instant land premised on the existence of the instant building, is unlawful.

B. Determination

1) As to the assessment of market price of the land donated

In full view of Article 97(1) of the former Income Tax Act and Article 163(10) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21887, Dec. 15, 2009), where a person with a special interest obtains profits from the gratuitous use of real estate and obtains profits therefrom, and where gift tax is imposed on deeming the amount equivalent to such profits as the value of donated property to a person with a special interest under Article 37 of the Inheritance Tax and Gift Tax Act as the value of donated property of a person with

However, in order to add such benefits of free use to the acquisition value as alleged by the Plaintiff, in the event that the gift tax is imposed on the Plaintiff by deeming such benefits of free use of land in the instant case as the amount of the gift tax, the acquisition value in calculating the gains of double taxation is adjusted in order to prevent double taxation at the time of transferring the instant land, and the same provision does not apply

Even if the acquisition value is determined by considering such benefits as a donation prior to the imposition of the gift tax, according to Article 27(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the benefits for free use of real estate under Article 37 of the Inheritance Tax and Gift Tax Act shall be determined by Ordinance of the Ministry of Strategy and Finance (2/100, and Article 10(1) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act) based on the “ratio prescribed by Ordinance of the Ministry of Strategy and Finance (2/100, and Article 10(1) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act)” in consideration of the period of free use of real estate for each year calculated based on the “ratio prescribed by Ordinance of the Ministry of Strategy and Finance (2/100, and Article 10(2) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act)”. In this case, n is determined by the value converted (limited to the number of years elapsed from the evaluation date, and Article 10(2) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act).

위와 같은 규정에 따르면, 당해 연도의 무상사용이익을 위 기획재정부령이 정하는 방법에 따라 향후 5년치를 환산한 가액[이는 당해 연도 무상사용이익(부동산가액 X 2/100)을 향후 무상사용기간 5년으로 하여 현가계산하라는 것이고, 이를 계산식으로 다시 간단히 정리하면, 부동산 무상사용이익(증여재산가액) = ∑ {토지가액 X 2% ÷ (1+10%)5}이 된다]이 1억 원 이상일 경우에 한하여 증여재산가액에 합산이 가능하다고 할 것인데, 이 사건의 경우 원고가 이 사건 토지를 무상사용하여 얻은 이익을 위 계산식에 따라 계산해보더라도 2004년도의 경우 부동산 무상사용이익이 최대 4,477,000원[무상사용 개시일인 2004. 3. 26. 이 사건 건물의 존재를 전제로 한 이 사건 토지의 부동산가액(감정시가) 223,850,000원 X 2/100]에 불과하고, 이를 위 기획재정부령이 정하는 바와 같이 향후 5년치를 현가계산으로 환산하더라도 1억 원 이상이 되지 않음이 계산상 명백하며[4,477,000원 X 3.7908 = 16,971,411원(원 미만 버림, 이하 같다), 원고에게 가장 유리하게 이 사건 토지의 부동산가액을 원고가 주장하는 애굿 중 최고액인 CC의 경락가액 361,100,000원으로 보더라도 무상사용이익은 27,377,157원[(361,100,000원 X 2%) X 3.7908}에 불과하여 결과에 있어서는 마찬가지이다], 이는 원고에게 부동산 무상사용 이익에 관한 증여세가 과세될 사안에 해당하지 않으므로, 취득가액(필요경비)에 합산할 증여재산에 해당하지도 않는다.

Furthermore, the Plaintiff asserts that the property value of the profit from gratuitous use is KRW 119,185,00 (or KRW 343,035,00 at the market price as at the date of donation of the instant land based on the premise of the site - KRW 223,850,00 at the time of donation of the instant land taking into account the existence of the instant building, or that the said value is calculated by mixing the statutory term of existence of superficies with the method of calculating the profit from gratuitous use of real estate under the Inheritance Tax and Gift Tax Act, and that the profit from such gratuitous use is KRW 216,660,00 (or at least KRW 205,821,100), but there is no other evidence to deem that the profit from such gratuitous use was above KRW 100,00,00.

Therefore, this part of the plaintiff's assertion is without merit.

2) As to the acquisition value of the instant land relating to calculation of necessary expenses

Article 88 (1) of the former Income Tax Act provides that "the term "transfer" means that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc. regardless of the registration or enrollment of the asset, and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21934 of Dec. 31, 2009) provides that the time of acquisition and transfer under Article 98 of the former Enforcement Decree of the Income Tax Act shall be the date the price of the asset is settled, but if the date the price is settled is not clear, it shall be the date the registration, receipt or transfer is recorded in the register, registry, or list, and if the price is registered before the settlement of the price, it shall be the date of receipt of the registration entered

According to the above evidence, although the sale date of the cause of registration on the registry of the land of this case is October 9, 2009, according to the sales contract, the plaintiff entered into a sales contract on D and transferred land and building of this case with D and decided on November 29, 2009. The date of the balance is November 30, 2009, the following day of the registration of transfer of ownership was received and D are presumed to have been transferred by account transfer of 2790,000 won presumed to be the remainder as the plaintiff's account on November 30, 2009. In light of such facts, it is reasonable to view the transfer date as not only the final payment was made, but also the registration of real estate was made on November 30, 2009.

Accordingly, in this case, it is apparent that the Plaintiff’s donation of this case cannot be deemed to have been made within five years from the date of transfer, in which the Plaintiff’s donation of this case was made in November 11, 2004, and therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.