[1] Whether the contribution of the property contributed to public services, which is not included in the taxable value of the property pursuant to Article 8-2 (1) of the former Inheritance Tax Act, is included in the heir (negative)

[2] The case holding that the court cannot calculate the amount of legitimate tax on the basis of its ex officio, unless the tax authority has asserted that the portion not included in the taxable value of the inheritance at the time of imposition should be again included in the taxable value of the inheritance

[3] Whether the retroactive appraisal price of the inherited property can be deemed as the market price (affirmative)

[4] Requirements to regard a sale price at a certain time after the commencement of the inheritance as the market price at the time of the commencement of the inheritance

[1] Article 8-2 (1) 1 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990) provides that the property contributed to a religious business, charity business, academic business, and other public business operated under the conditions as prescribed by the Presidential Decree shall not be included in the taxable value of the inherited property. In light of the fact that Article 2 (1) of the Act provides that the inheritance tax shall be imposed on all inherited property, the property contributed to the public business not included in the taxable value of the inherited property shall be limited to the property contributed by the decedent, and the property contributed by the heir shall not be included in the property contributed by the heir.

[2] The case holding that since the principle of pleading is also applied to the administrative litigation, in principle, and the tax authority concerned has asserted that the disposition of imposition of a report was justifiable as a donation of 350,000,000 won from the legal brief stated on the date of pleading with the contribution of an inherited property by the public works project among inherited property, and there was no assertion that even thereafter, the above amount of 350,000,000 won, which is not already included in the taxable value of inherited property, should be again included in the taxable value of inherited property, since the above amount of 350,00,000 won, among the above contributions, should not be included in the taxable value of inherited property by the heir, even if there were no evidence that the above amount of 350,000,000 won, among the above contributions, should be included in the taxable value of inherited property ex officio by the court.

[3] The "market price" under Article 5 (1) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196, Dec. 31, 1990) which provides for the evaluation method of inherited property means, in principle, an objective exchange price formed through normal transactions, but this is a concept that includes the value appraised in an objective and reasonable manner. Thus, in a case where there is no exchange price through transactions, the appraisal price of a reliable appraisal institution may also be deemed as the market price, and the value shall not be changed even if it is based on retroactive appraisal.

[4] If the tax authority regards a sale price at a certain time after the commencement of the inheritance as the market price at the time of the commencement of the inheritance, it shall actively prove that there was no change in the market price between them.

[1] Articles 2(1)1 and 8-2(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4283, Dec. 31, 1990; see Article 16(1) of the current Inheritance Tax and Gift Tax Act) / [2] Article 188 of the Civil Procedure Act; Articles 8(2) and 26 of the Administrative Litigation Act / [3] Article 9(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4283, Dec. 31, 1990; see Article 60(1) of the current Inheritance Tax and Gift Tax Act); Article 5(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 13196, Dec. 31, 190; see Article 160(1) of the current Inheritance Tax and Gift Tax Act) / [4] Article 188(1) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1319, Dec. 136, 19, 1960.

[1] Supreme Court Decision 96Nu10461 delivered on January 24, 1997 (Gong1997Sang, 683) / [2] Supreme Court Decision 91Nu1329 delivered on August 14, 1992 (Gong1992, 2691) / [3] Supreme Court Decision 90Nu8459 delivered on April 12, 1991 (Gong1991, 1398), Supreme Court Decision 92Nu897 delivered on April 13, 1993 (Gong193, 1414), Supreme Court Decision 94Nu15325 delivered on May 26, 1995 (Gong195Ha, 2295) / [3] Supreme Court Decision 90Nu194979 delivered on April 16, 199 (Gong1949, 194) / [4] Supreme Court Decision 97Nu1932949794 delivered on May 1949497. 1949497

Plaintiff 1 and 10 others (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

The director of the tax office.

Seoul High Court Decision 94Gu38030 delivered on October 23, 1996

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The defendant's appeal is dismissed, and the costs of appeal are assessed against the defendant.

1. The plaintiff's attorney's grounds of appeal are examined.

On the first ground for appeal

Article 8-2 (1) 1 of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990; hereinafter the same) provides that the property contributed to a religious business, charity business, academic business and other public services operated under the conditions as prescribed by the Presidential Decree shall not be included in the taxable value of inherited property. In light of the fact that Article 2 (1) of the Act provides that the inheritance tax shall be imposed on all inherited property, the property contributed to public services not included in the taxable value of inherited property shall be limited to the property contributed by the decedent, and the property contributed by the heir shall not be included in the property contributed by the heir.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as pointed out, and the above interpretation does not violate the principle of strict interpretation of tax-related Acts and subordinate statutes, the principle of no taxation without law, and the principle of property rights guarantee or equality under the Constitution.

In addition, the precedents of party members cited in the grounds of appeal are different cases and it is not appropriate to invoke the case in this case.

On the second ground for appeal

According to the reasoning of the judgment below, the court below determined that, upon the death of the non-party 1 on August 17, 1990, since the defendant imposed, notified the inheritance tax and defense tax of this case on July 1, 1993 to the plaintiffs who are heirs, the amount of the above tax should be reduced or corrected according to the decision of the court below, and that the National Tax Tribunal shall not include the amount of 350,000,000 won out of the contributions of this case from the taxable value of inherited property again corrected the tax base and tax amount by deducting the amount of the above tax from the taxable value of inherited property. The court below determined that the plaintiff's assertion that the amount of the contribution of this case should not be included in the taxable value of inherited property except the amount not included in the taxable value of inherited property among the contributions of this case, the remaining amount of 350,000,000 won should not be included in the taxable value of inherited property. Thus, the court below determined that the amount of the above tax should not be included in the inheritance tax amount.

However, in principle, the principle of pleading is applied to the administrative litigation. According to the records, the defendant alleged that in the legal brief dated August 22, 1995, which was stated on the fourth date for pleading of the court below, the defendant made a report that the contribution of this case was donated each amount of KRW 350,000,000 by the plaintiff 3, who is his heir, as his wife, as his wife, as a result of the plaintiff's fourth date for pleading of the court below, was just in the disposition of imposition of the defendant. Since there was no argument that the amount of the contribution of this case, which was not already included in the taxable value of the inherited property, should again be included in the taxable value of the inherited property (the fact that the amount is not included in the taxable value of the inherited property is in accordance with the decision of the National Tax Tribunal, and the defendant cannot make such argument against the above decision because it was binding on the decision of the court's determination of the judgment, the above amount of the contribution of this case should not be included in the taxable value of the inheritance property ex officio.

Nevertheless, the court below determined that the above amount should be included in the taxable value of inherited property as stated in its holding is erroneous in the misapprehension of legal principles of the principle of pleading, and it is obvious that such illegality had influenced the conclusion of the judgment.

The grounds of appeal pointing this out are correct.

2. We examine the grounds of appeal by the defendant litigation performer.

The "market price" under Article 5 (1) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196, Dec. 31, 1990) which provides the evaluation method of inherited property refers to the objective exchange price formed through normal transactions in principle, but it includes the value appraised in an objective and reasonable manner. Thus, if there is no exchange price through transactions, the appraisal price of a reliable appraisal institution may be deemed the market price, and even if there is no exchange price through retroactive appraisal, it shall not be changed (see Supreme Court Decision 90Nu8459, Apr. 12, 1991; 90Nu1939, Jul. 27, 1990).

According to the reasoning of the judgment below, the court below held that the market price of the forest of this case at the time of the commencement of the inheritance is not the above sale price, but the above appraisal price is not the above appraisal price, since it is true that the sales contract for the forest of this case was concluded at 2,864,00,000 won on November 12, 1990, but there was no price fluctuation between the time of the commencement of the inheritance and the date of the above sales contract, the evidence cited by the defendant is hard to believe and there is no other evidence to find otherwise. Rather, according to the appraiser non-party 2's appraisal result, the value of the forest of this case at the time of the commencement of the inheritance was recognized as 1,917,37,000 won. In light of the evidence and the above legal principles, the above recognition and determination of the court below is just, and there is no violation of the rules of evidence, incomplete deliberation, omission

Therefore, among the grounds of appeal by the plaintiff, the part against the plaintiff among the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed as it is without merit, and the costs of appeal against this part are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Final Young-young (Presiding Justice)