1. Article 60 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “Gift”) provides that the value of property on which gift tax is levied shall be based on the market price as of the date of donation (hereinafter “standard date of appraisal”) and, in cases where it is difficult to calculate the market price, it shall be based on the supplementary evaluation methods stipulated in Articles 61 through 65 of the Inheritance Tax and Gift Tax Act. Meanwhile, Article 66 of the Inheritance Tax and Gift Tax Act provides that “The value of property falling under any of the following subparagraphs shall be the larger of the value assessed under the conditions as prescribed by the Presidential Decree based on the amount of claims secured by the relevant property, notwithstanding Article 60.” Article 60 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “property on which a mortgage or pledge is created” under subparagraph 1 of the same Article refers to the value of property assessed under Article 66(1)6(3) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

Article 66 of the Inheritance and Gift Tax Act, which provides for special cases of appraisal of property offered as security, provides for the purpose of calculating a value close to the market price by supplementing the provisions of Article 60(1) of the Inheritance and Gift Tax Act, which provides for the principle of market price principle with respect to the appraisal of donated property. Since the amount of claims secured by the right to collateral security established on the date of donation is likely to accurately reflect the market price at the time of donation with respect to the property, only the amount of claims secured by the right to collateral security established on the date of donation and the right to collateral security established on the date of donation need not be considered as properly reflecting the market price of the donated property, barring any special circumstances, if the right to collateral security is established on the date of donation with respect to the property in question, it constitutes "property on which the right to collateral security is established" as provided by Article 66(1)1 of the Inheritance and Gift Tax Act, and ultimately, the amount of claims secured by the right to collateral security shall be deemed to constitute "the amount of claims secured by the property at the present base date of appraisal."

2. The reasoning of the lower judgment reveals the following facts.

① On March 15, 2008, the Plaintiff and Nonparty 1 entered into a contract with Nonparty 2 to receive one-half share of the instant real estate owned by Nonparty 2. On March 25, 2008, the Plaintiff entered into a contract with Nonparty 1 to sell the said one-half share of the Plaintiff’s gift (hereinafter “instant donated property”) to Nonparty 1.

② On April 3, 2008, with respect to each one half of the instant real estate, the registration of ownership transfer was made under the name of the Plaintiff and Nonparty 1 on March 15, 2008. On the same day, with respect to the instant donated property, the registration of ownership transfer was made under the name of Nonparty 1 on March 25, 2008.

③ Meanwhile, Nonparty 1 loaned KRW 3.5 billion from a future mutual savings bank of the Republic of Korea on April 3, 2008, and completed the registration of creation of a mortgage over the instant real estate and title 2 as the object of joint collateral security with respect to these real estate under the name of the maximum debt amount of KRW 4.55 billion.

3. Examining such factual relations in light of the above provisions and legal principles, and Article 63(1)2 of the Enforcement Decree of the Inheritance and Gift Tax Act provides that the value of the property on which a joint mortgage is created shall be calculated pro rataly by the value as of the base date of appraisal of the property on which the pertinent property is jointly mortgaged, as of the base date of appraisal of the property on which the pertinent property is jointly mortgaged. Thus, the amount of the property secured by the instant donated property, i.e., the amount calculated proportionally by the value of each real estate as of the date of donation, among the amount secured by the first real estate and the second real estate, can be deemed as the amount of the property secured by the relevant property on April 3, 2008, which is the date of donation, unless there are other special circumstances.

Nevertheless, the court below determined that the disposition of this case was unlawful on the ground that the secured claim amount of the right to collateral security does not constitute “the amount secured by the relevant property as of the base date for appraisal” under Article 63(1)3 of the Enforcement Decree of the Inheritance and Gift Tax Act, even if the secured claim amount of the right to collateral security was established on the same date as the donation after the donation was made. In so determining, the court below erred by misapprehending the legal principles on the appraisal of property for which the mortgage, etc. under Article 66 of the Inheritance and Gift Tax Act and Article 63(1)3 of the Enforcement Decree of the Inheritance and Gift Tax Act, thereby affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)