Cho High 2013 Jeon 0216 (2013.06)

No more than three months before or after the date of donation shall be deemed the market price in the provision of the example.

If there is an example of sale of donated property at the time close to the date of donation even for a period exceeding three months, and the objective exchange price formed by normal transactions is calculated, assessing the donated property at the market price would accord with the principle of market price.

2013Guhap101561 Demanding revocation of disposition imposing gift tax

AA

The Director of the National Tax Service

on March 3, 2014

oly 24, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of notice of correction of gift tax amounting to KRW 39,819,970 against the Plaintiff on September 10, 2012 (hereinafter “instant disposition”) shall be revoked (it is reasonable to see that the said amount is written in writing 1).

1. Details of the disposition;

The following facts do not conflict between the parties, or evidence A Nos. 1, 2, and 1 through 9 (A)

If each entry of a lot number includes a branch number, hereinafter the same shall apply) shows the overall purport of the pleading, it may be recognized.

A. Plaintiff’s land acquisition and gift tax return

(1) The Plaintiff’s father BB shall have the 135 m20 m2,00 m2,000 m2,000 m2,00 m2,00 m2,00

On November 21, 2005, no later than four months after the date of the sale, the Plaintiff received the donation of the instant land from his father (hereinafter referred to as “the instant donation”) and completed the registration of ownership transfer of the instant land under one’s name on the ground of the donation. The Plaintiff reported the gift tax on the instant land on February 17, 2006, and filed a report on the value of donated property at KRW 380,000,000 on the basis of the officially announced value of the gift.

B. Imposition, etc. of the instant inheritance tax

(1) After that, the Plaintiff died on May 7, 201, and the Plaintiff on November 30, 2011.

Inheritance Tax was reported including donated property in advance.

B. On June 2012, the Defendant: (a) conducted an inheritance tax investigation on the Plaintiff; and (b) conducted Daejeon.

The property evaluation review committee of a regional tax office requested the deliberation on the market price at the time of the evaluation base date ( November 22, 2005, when the ownership transfer registration was completed in the plaintiff) of the land in this case.

The above Deliberation Committee shall change the form between the acquisition date of the land of this case and the donation date, and change the surrounding environment.

There is no special circumstance of price fluctuation, and there is no opinion that the transaction value at the time of acquisition of the land in this case can be viewed as the market price at the date of donation in this case.

Article 60(1) and (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8139, Dec. 30, 2006; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) shall be deemed as the sales price of the instant land and the Defendant additionally imposes a gift tax of KRW 39,819,970 (including additional tax for unfaithful payment, KRW 16,59,978, and no additional tax for negligent return) on September 10, 2012 (hereinafter referred to as the “instant disposition”).

x) The plaintiff is dissatisfied with the disposition of the instant case and filed an appeal with the National Tax Tribunal on December 6, 2012.

However, the decision of dismissal was made on August 6, 2013.

2. Determination as to whether the dispositions of this case are proper

A. The plaintiff's assertion

(1) According to Article 49(1)1 and 49(2)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1933, Feb. 9, 2006; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”), the “market price under Article 60(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act” refers to the transaction price where a transaction price exists during the period of three months before or after the date of donation, which is the base date of appraisal. However, since the transaction price of the instant land was not nonexistent for three months before or after the base date of appraisal, the Plaintiff did not have to report the market price as a supplementary assessment method. Nevertheless, the Defendant’s imposition of additional tax by retroactively assessing the market price of the instant land was unlawful.

Shebly, even if the market price of the land in this case should be calculated together with the disposition in this case, it is unlawful for the Defendant to impose an erroneous payment on the Plaintiff without any unlawful matters at the time of filing the report.

B. Relevant statutes

annex. See relevant legislation, entry.

C. Determination

(1) Whether the market price of the land of this case is calculated

As of the date of donation under Article 60 (1) of the former Inheritance Tax and Gift Tax Act, which provides for the evaluation method of donated property;

“Market price” refers to an objective exchange price formed through a normal transaction in principle, and there should be circumstances to deem that the transaction price objectively reflects the general and normal exchange value in order to make the transaction price as the market price at the time of donation. Moreover, there should be no change in the price between the time of donation and the above transaction date (see, e.g., Supreme Court Decision 2005Du2841, May 31, 2007).

As above, Article 60 (1) of the former Inheritance Tax and Gift Tax Act declares the principle of market value in the evaluation of inherited or donated property under paragraph (1). Paragraph (2) provides for a broad standard which can be recognized as the market price on the premise that the market price is formed through general and normal transactions and that it should reflect an objective exchange value appropriately, and delegates specific scope thereof to the Presidential Decree. In light of the language of Article 60 (2) of the Act, it is not limited to the case where the market price is recognized as the market price under conditions prescribed by Presidential Decree, such as acceptance, public sale price, appraisal price, etc., and thus, each subparagraph of Article 49 (1) of the Enforcement Decree upon delegation of the above provision is merely an example of representative cases that can be seen as the market price of inherited property (see Supreme Court Decisions 200Du5098, Aug. 21, 2001; 2007Du23200, Jan. 14, 2010).

According to each of the statements in the instant sales contract and evidence Nos. 1, 1, and 8 through 11, the fact that the interval between the date of the instant sales contract and the date of the instant donation is about 4 months and 15 days, and there is no difference between the date of the instant sales contract and the officially announced price of the instant donation, and the fact that there is no change in land category and land use status, surrounding environment, market price of neighboring land, etc. can be acknowledged.

Unless there are special circumstances to deem that the market price has changed between the date of the instant sales contract and the date of the instant donation, the sale within three months before and after the date of donation under the former Enforcement Decree of the Inheritance Tax and Gift Tax Act

In the case of a contract, the provisions that are deemed to be the market price are merely the examples of the market price, and increase in the market price.

The reason why the law adopts the principle of market value is equivalent to the capacity of a person in accordance with the principle of substantial taxation.

(1) A tax may be imposed for a period exceeding three months prescribed in the Enforcement Decree of the Tax Act.

There is an example of sale of donated property at the time close to the date of donation, and the sale price is normal transaction;

If an objective exchange price formed by the corporation is the market price and the property is assessed at the market price.

In addition to the fact that it conforms to the principle of provisionalism, it is legitimate that the defendant judged that "the purchase price of the sales contract of this case is the market price of the donation date of this case." Thus, the plaintiff is against this principle.

The above argument is without merit.

D. Whether the imposition of additional dues is legitimate or not

Additional tax on the contents of Article 78(2) of the former Inheritance Tax and Gift Tax Act and additional tax on gift tax

For inducing a person to pay tax in good faith, the due date of return and payment.

The unpaid amount shall be deemed to have received financial benefits, and the violation of the obligation to pay shall be deemed to have been paid.

In full view of the fact that the property is an administrative sanction, the difference in the valuation of the value of the property;

Therefore, even if the tax amount is not paid due to this, it is excluded from the subject of imposition of additional tax.

Nor can it be said that the above circumstances alone fall short of the payable tax amount.

Therefore, even if the Plaintiff did not pay some gift tax due to a mistake in applying the method of assessment on the market price of the instant land, the unpaid gift tax portion alone is subject to imposition of additional tax for unfaithful payment (see, e.g., Supreme Court Decisions 96Nu16308, Nov. 27, 1998; 2007Du23200, Jan. 14, 2010).

Since the defendant's imposition of an additional tax on the plaintiff is not excluded, it is illegal.

No appeal can be made. The plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.

Justices Go Chang-mo, Counsel

Judges fixed-type

Judges Senior Jin-jin