[증여세등부과처분취소][공1991.2.15.(890),656]
The burden of proving that there was no choice but to choose the appraisal method by the multiple factor because the market price of the donated property is difficult to calculate(=the tax office)
With respect to the valuation of donated property according to the ratio method determined by the Commissioner of the National Tax Service, it is a supplementary valuation method, and the above valuation method has no choice but to be selected because it is difficult to calculate the market price, the tax authority should not prove it. If the market price of donated property can be calculated, the court should calculate it ex officio and determine the propriety of the taxation.
Article 9 of the Inheritance Tax Act, Article 5 of the Enforcement Decree of the Inheritance Tax Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant)
Park Jong-man, Attorney Han Han-woo, Counsel for the plaintiff-appellant
Head of the tax office of Ulsan District Tax Office (former Head of the tax office)
Busan High Court Decision 89Gu2073 delivered on June 29, 1990
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
As to the ground of appeal by Defendant Litigation Performers
According to Articles 5(1) and 5(2)1(a) of the Enforcement Decree of the Inheritance Tax Act which applies mutatis mutandis to gift tax, the value at the time of donation or the value at the time of imposition of gift tax shall be based on the current market price at that time, respectively, and if it is difficult to calculate the market price, it shall be based on the value assessed by the rate method in a specific area prescribed by the Commissioner of the National Tax Service. Such valuation of donated property is a supplementary method of assessment, and it shall be limited to a supplementary method of assessment, and the tax authority should not prove that there was no other reason to select the above valuation method as it is difficult to calculate the market price (see Supreme Court Decision 88Nu8715
Under such premise, the court below did not have any assertion as to the fact that the defendant had no choice but to follow the supplementary assessment methods in assessing the value at the time of the imposition of gift tax on the real estate of this case. Rather, according to the adopted evidence, the court below held that the real estate was designated as a park area and there was little transaction since the plaintiff was designated as a general residential area at the time of the transfer of ownership after being donated by his mother and completed the registration of transfer of ownership, and that the plaintiff also sold part of the real estate of this case more actively and more times thereafter, and therefore, it cannot be said that the market price at the time of the imposition of gift tax of this case is difficult to calculate, the defendant's disposition of this case was unlawful, and the plaintiff's claim was accepted.
In such a case, it is not necessary for the court to calculate the market price of the donated property by its own authority and determine the propriety of the taxation disposition. Therefore, the court below's decision that did not proceed to specify the value of the donated property cannot be deemed to be erroneous
There is no reason to discuss this issue.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Young-young (Presiding Justice)