Article 49 (Evaluation Principles, etc.)

2. The applicant's remaining requests are dismissed.

Purport of application

Article 60(1) through (3) of the Inheritance Tax and Gift Tax Act, and Article 49(1) and (5) of the Enforcement Decree of the same Act are in violation of Article 38 and Article 59 of the Constitution.

A. On September 8, 2005, the applicant was donated ○○○○○○-dong, Seoul, ○○○○ apartment, 212 Dong 208 (hereinafter “instant apartment”).

B. On September 23, 2005, the applicant assessed the value of donated assets to the other party as KRW 147,50,000, which is the standard market price publicly notified by the Commissioner of the National Tax Service, and reported and paid KRW 17,550,000.

C. As of September 8, 2005, the other party, as of the donation date of the apartment of this case, investigated the trading case of neighboring apartment of this case for the period of three months before and after that day, it confirmed that the 212-dong 303 apartment of the same area located in the same complex as the apartment of this case (hereinafter referred to as the "sale case apartment of this case") was traded in the amount of 257,00,000 won on August 13, 2005, and applied Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") and Article 49(1) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") 257,000,000 won in the sale price of the apartment of this case as the market price of the apartment of this case and calculated the value of the apartment of this case on November 13, 2007.

D. The applicant filed an administrative lawsuit seeking the revocation of the instant disposition against the other party as Seoul Administrative Court 2008Guhap21539, and filed an application for filing a petition for adjudication on constitutionality, such as the purport of the application.

2. Provisions of the Acts and subordinate statutes of this case subject to the filing of a request;

Article 60(1) through (3) of the Inheritance Tax and Gift Tax Act and Article 49(1) and (5) of the Enforcement Decree of the same Act, which are the subject of the request for adjudication on the constitutionality of the instant case, are as follows

Article 60 (Principles, etc. of Appraisal)

Article 49 (Evaluation Principles, etc.)

3. Applicant's assertion

Articles 38 and 59 of the Constitution declare the principle of no taxation without the law. The principle of no taxation without the law is a principle that ensures the legal stability and predictability of people's lives by clearly stipulating the requirements for taxation. According to Article 60(1) through (3) of the Inheritance Tax and Gift Tax Act and Article 49(1) and (5) of the Enforcement Decree of the same Act, with respect to inherited or donated property, five methods such as transaction prices of the pertinent property, (2) appraisal prices, (3) compensation prices at the time of expropriation, (4) auction or public sale prices, and (5) values appraised by the methods stipulated in Articles 61 through 65 of the same Act are applied, and even if similar property exists, (1) or (4) methods can be applied even if the above methods are unclear, and there is no clear criteria for determining which method is applied at the time of reporting and paying gift tax, so there is room for arbitrary judgment by the tax authority in the process of applying the law, and depending on whether the sale cases of similar property are likely to vary.

4. Determination

A. Whether an application for adjudication on the unconstitutionality of statutes is legitimate under Article 49(1) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

On the other hand, Article 41(1) of the Constitutional Court Act provides that a court may request an adjudication on the constitutionality of a law to the Constitutional Court only when a law violates the Constitution is the premise of the judgment. Thus, whether a law is unconstitutional under Article 49(1) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which is the Presidential Decree, can not be the subject of an application for adjudication on the constitutionality of a law, and therefore, the application for

B. Appropriateness of a request for an adjudication on the constitutionality of statutes pursuant to Article 60(1) through (3) of the Inheritance Tax and Gift Tax Act

(1) According to Article 60(1), (2), and (3) of the Inheritance Tax and Gift Tax Act, when the value of the inherited property or donated property is calculated by the "market price as of the date of commencing an inheritance or the date of donation", the meaning of the "market price" includes the value recognized as the "market price" under the conditions as prescribed by the Presidential Decree, such as the expropriation, public auction price, and appraisal price, in addition to the value which is generally recognized when a free transaction takes place between many and unspecified persons, and where it is difficult to calculate the market price as above, the market price shall be assessed by the supplementary assessment methods under Articles 61 through 65 of the Inheritance Tax and Gift Tax Act, taking into account the type, scale, transaction circumstances, etc. of the property in question. Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act enacted by delegation of the same parent law provides that the "market price of inherited property" is a transaction subject to sale, appraisal, expropriation, auction, or public sale within six months before or after the date of appraisal.

(2) In full view of the above related provisions and the records of this case, since the market price of an officetel is based on the premise that it is an objective exchange price formed through normal transactions as a matter of principle, it is not the transaction price which can automatically depend on only one transaction. (2) The Inheritance Tax and Gift Tax Act delegates specific standards to the Presidential Decree as the market price because it is difficult to provide for all transaction methods due to continuous changes in the transaction reality and transaction style in the form of a formal law, but it presents the approximate standard of the transaction which is already recognized as the market price under the Inheritance Tax and Gift Tax Act. (3) Article 49 (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is newly established as the Presidential Decree No. 1817 of December 30, 203 and its legislative purpose is to calculate the market price of the pertinent property, and thus, it is intended to realize the principle of substantial taxation that the sale price of the relevant apartment property is identical or similar to the pertinent property, and the sale price of the relevant property can be determined as the market price under the same or similar taxation method.

Therefore, the applicant's above assertion is without merit.

5. Conclusion

Therefore, the application for a request for adjudication on constitutionality of the Inheritance Tax and Gift Tax Act Article 49(1) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is unlawful. Therefore, the remaining application for adjudication on constitutionality of statutes is dismissed, and it is so decided as per Disposition.