[증여세등부과처분취소][공1991.8.1.(901),1952]
The adequacy of disposition imposing gift tax based on the amount of the market price of the unlisted stocks, which are donated property, and the face value of the unlisted stocks for which no example of sale is appropriately reflected (negative)
According to Articles 34-5, 9(1) and (2) of the former Inheritance Tax Act (amended by Act No. 4022, Dec. 26, 198) and Article 5(1) of the Enforcement Decree of the same Act, the value of the donated property shall, in principle, be based on the market price at the time of donation or at the time of imposition of gift tax. Only when it is difficult to calculate the market price, the value of the donated property shall be based on the supplementary assessment methods stipulated in Article 5(2) through (5) of the Enforcement Decree of the same Act. In cases where the donated property is a non-listed property, if there is a sale example that appropriately reflects the objective exchange value, such price shall be deemed the market price, and if there is no such example or it is difficult to calculate the market price by any other method, the value of stocks shall be assessed in accordance with the method of appraisal of securities as stipulated in Article 5(5) of the Enforcement Decree of the same Act by the supplementary method, and the
Articles 34-5, 9(1) and (2) of the former Inheritance Tax Act (amended by Act No. 4022 of Dec. 26, 198), Article 5(1), 2, 3, 4, and 5 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12567 of Dec. 31, 198)
Supreme Court Decision 87Nu500 decided Oct. 26, 1987 (Gong1987,1812) 88Nu2861 decided Mar. 13, 1990 (Gong1990,904) 90Nu1229 decided Jul. 10, 1990 (Gong190,1731)
[Judgment of the court below]
Head of Mapo Tax Office
Seoul High Court Decision 90Gu9058 delivered on December 20, 1990
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
According to Articles 34-5, 9(1) and (2) of the Inheritance Tax Act applicable to this case (amended by Act No. 4022 of Dec. 26, 198), and Article 5(1) of the Enforcement Decree of the same Act, the value of donated property shall be based on the current status as at the time of donation, but where a gift tax is not reported or omitted in a return, the value at the time of donation shall be based on the current status as at the time of donation, and where a gift tax is not reported or omitted in a return, the value at the time of donation shall be based on the current status as at the time of donation, respectively. Only when it is difficult to calculate the market price, the market price shall be based on the supplementary method stipulated in Article 5(2) through (5) of the Enforcement Decree of the same Act, if there is an example that appropriately reflects the objective exchange value in the case of non-listed stocks, and if it is difficult to calculate the market price by any other method, the value of stocks shall be evaluated by supplementary method in accordance with the method of appraisal under Article 5(5).
In this case, where the plaintiff did not report gift tax within the statutory period, the court below held that the disposition of gift tax in this case was unlawful because the defendant calculated the value of 8,500 non-listed stocks donated as the tax base based on their face value and made the disposition of gift tax in this case as the tax base. The above purport is correct, and there is no error of misunderstanding of legal principles or misunderstanding of facts, such as theory of lawsuit, etc.,
Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Jae-ho (Presiding Justice)