객관적인 교환가치를 반영한 정상적인 거래가액[국승]
Normal transaction values reflecting objective exchange values;
Within three months from the donation date of the apartment of this case, it is reasonable to view that the ordinary transaction amount reflecting objective exchange values is the value of the apartment of this case, the size, location, use, issues, and the standard market price of the apartment of this case, or similar apartment.
Article 60 of the Gift Tax Act
2018Guhap801 Revocation of Disposition of Imposition of Gift Tax
민@@
*The Director of the Tax Office
August 23, 2018
October 4, 2018
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition of imposition of gift tax of KRW 9,641,940 against the Plaintiff on January 12, 2016 is revoked.
1. Details of the disposition;
원고는 2015. 3. 12. 원고의 아버지의 소유이던 @@시 @@동 @@@ @@@@아파트***동 ****호(이하 '이 사건 아파트'라 한다)에 관하여 2015. 3. 11. 증여를 원인으로한 원고 명의의 소유권이전등기를 마쳤는데, 당시 이 사건 아파트에는 채권최고액을9,480만 원으로, 채무자를 원고로 하는 대출금채무(이하 '이 사건 대출금채무'라 한다)를 담보하기 위하여 @@@업은행 명의의 근저당권설정등기가 되어 있었다.
원고는 2015. 6. 30. 피고에게 자신의 아버지로부터 이 사건 대출금채무를 인수하는 조건으로 이 사건 아파트를 증여받았다고 주장하면서 이 사건 아파트의 증여 당시의 시가를 기준시가인 1억 400만 원으로 하고 이 사건 대출금채무 7,900만 원을 인수한것으로 하여 증여세 과세가액을 산정한 다음 증여재산 공제액 5,000만 원을 차감하여증여세 납부세액이 없는 것으로 증여세 과세표준을 신고하였다. 피고는 이 사건 아파트와 같은 동에 있는 @@@@아파트 **동 ***호(이하 '이 사건 비교대상아파트'라 한다)의 2015. 4. 7.자 매매가액 1억 3,700만 원을 이 사건 아파트의 증여 당시의 시가로 보고 원고의 채무 인수액은 없는 것으로 보아 2016. 1. 12. 원고에게 이 사건 아파트의 증여에 따른 2015년 귀속 증여세 9,641,940원(가산세 포함)을 결정ㆍ고지하는 처분(이하 '이 사건 처분'이라 한다)을 하였다.
[Reasons for Recognition] Entry No. 1 of Eul and the purport of the whole pleading
2. Whether the disposition is lawful;
A. The plaintiff's assertion
Since the location and area of the instant apartment and the instant comparative apartment are different, in calculating the value of donated property of the instant apartment, the sales value of the instant comparative apartment cannot be deemed the market value at the time of donation of the instant apartment. In addition, since the Plaintiff acquired the instant apartment as the gift of the instant apartment and acquired KRW 79 million, the acquisition value of the instant loan obligation should be deducted from the value of donated property in calculating the taxable value of the gift tax of the instant apartment. Therefore, the instant disposition that was otherwise deemed unlawful.
(b) Related statutes;
It is as shown in the attached Table related statutes.
(c) Fact of recognition;
1) @@@@은행은 2014. 7. 16. 원고에게 이 사건 대출금채무 7,900만 원을 대출하였고, 같은 날 이 사건 대출금채무의 담보로 원고의 아버지의 소유이던 이 사건 아파트에 관하여 채권최고액을 9,480만 원으로, 채무자를 원고로 하는 내용의 근저당권설정등기를 마쳤다.
2) The Plaintiff received the gift of the instant apartment from his father on March 12, 2015, and the details of the sale and purchase transaction of other apartment units in the same Dong as that of the instant apartment that was made within three months before and after the date of the donation are as follows.
Location
Date of Transaction
Area of a square meter;
January 1, 2015
Standard market price (won)
(B)The sales price;
** Dong***
(2) The apartment of this case
March 12, 2015
59.460
104,000,000
** Dong***
(Compared Apartment of this case)
April 7, 2015
59.935
87,000,000
137,000,000
** Dong***
May 15, 2015
59.935
100,000,000
146,500,000
[Grounds for recognition] The entry of evidence Nos. 1 and 2, and the purport of the whole pleadings
D. Determination
1) Whether calculating the value of donated property is unlawful
The main sentence of Article 60(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter “the Act”) provides that the value of the property on which gift tax is levied shall be based on the market price as of the date of donation. Article 60(2) of the same Act provides that the market price shall be the value generally recognized as a transaction between many and unspecified persons where a free transaction is made between them, and shall include the value which is recognized as the market price as prescribed by Presidential Decree, such as the expropriation price, public sale price, and appraisal price. Article 49(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 26960, Feb. 5, 2016; hereinafter “Enforcement Decree”) provides that where a transaction of the relevant property exists within three months before or after the date of donation, the transaction price shall be deemed the market price in the application of Article 49(1) of the same Act.
The following circumstances revealed from the above recognition, namely, ① the instant apartment and the instant comparative apartment are identical in that the number of floors is a residential apartment located in the same Dong, but its area is similar to the difference of 0.475 square meters. ② The instant apartment are located in the 13rd floor among the instant apartment buildings, and are located in the 2nd floor, with a higher preference compared to the instant comparative apartment located in the 10th floor. The standard market price of January 1, 2015 is higher than 1.4 million won. ③ The sales price of the instant comparative apartment is higher than 87 million won in the standard market price of the instant comparative apartment; ③ The sales price of April 7, 2015 is the value of the apartment at the time of the instant apartment, which was within 12 March 2, 2015, which was the date of the donation of the instant apartment; and ② it is reasonable to view that there was no objective change in the standard market price and the sales price of the instant apartment within 30.5 months from the date of the instant apartment.
Therefore, the instant disposition, which calculated the value of donated property as at the market price at the time of donation of the instant apartment, is lawful pursuant to Article 60(1) and (2) of the Act and Article 49(1) and (5) of the Enforcement Decree thereof, based on the sales price of the instant comparative apartment as of April 7, 2015.
2) Whether the amount of debt acquisition is unlawful
Article 47 (1) of the Act shall apply to the total amount of donated property in calculating the taxable value of donated property.
As a debt secured by the donated property, the donee shall deduct the amount taken over by his/her lineal ascendants or descendants. Article 47(3) of the same Act provides that with respect to onerous donation between lineal ascendants or descendants, even if the donee takes over the donor's obligation, the donee shall be presumed not to have taken over the donee's obligation, but this shall not apply where the amount of obligation is objectively recognized as prescribed by Presidential Decree, such
위 인정사실에 의하면, 이 사건 대출금채무는 원고가 이 사건 아파트를 증여받기 전인 2014. 7. 16. @@@@은행으로부터 금전을 대출받음에 따른 원고의 채무로 보일 뿐이고, 이와 달리 이 사건 대출금채무가 당초 원고의 아버지의 채무였다가 이 사건 아파트의 증여와 함께 원고에 의하여 인수된 것이라고 볼 자료가 없으므로, 원고가 증여재산인 이 사건 아파트에 담보된 이 사건 대출금채무를 증여자인 자신의 아버지로부터 인수한 것이라고 볼 수는 없다.
Therefore, in calculating the taxable value of the gift tax of the apartment of this case, the disposition of this case which did not deduct the amount of KRW 79 million from the value of donated property is lawful.
3. Conclusion
The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.