Even if it is a private road located in an urban environment improvement area, it is not permitted to establish an association, and it cannot be deemed that there is real property value.

In fact at the time of commencement of inheritance, many unspecified roads are provided for use, and property tax is not imposed, and even private roads located in urban environment rearrangement project district are not authorized to establish an association, it cannot be deemed as property value.

Article 2 (Gift Tax Taxables) of Inheritance Tax and Gift Tax Act

Seoul Administrative Court-2017-Gu Partnership-85160

leap*

*The Director of the Tax Office

. 2018.14

November 23, 2018

1. The Defendant’s disposition of imposition of KRW 114,042,330 (including additional taxes) of inheritance tax imposed on the Plaintiff on November 3, 2016 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Order.1)

1. Details of the disposition;

A. On March 29, 2015, the heir, including the Plaintiff, reported and paid the inheritance tax on September 30, 2015. Of the inherited property, the value of the inherited property was specified only by each parcel number, 361-11 large scale 360 square meters, 364-56 large scale 176 square meters, 364-8 square meters, and 99 square meters (hereinafter referred to as “each parcel number,” and hereinafter referred to as “the instant land”) is actually used as a road, and there is no property value at the time of commencing the inheritance.

B. From June 16, 2016 to August 24, 2016, the Defendant conducted an inheritance tax investigation with respect to the deceased’s inheritors, and determined that the instant land was included in the ○○1 Urban Renewal Promotion Zone and the publicly announced individual land price annually, and thus, cannot be deemed as real estate without property value. Accordingly, the Defendant assessed the instant land as the publicly announced individual land price at the time of commencing the inheritance, and imposed an inheritance tax of KRW 114,024,30 (including additional taxes) on the Plaintiff on November 3, 2016 (hereinafter “instant disposition”).

Evidence Nos. 1 and 1 to 6 of the Grounds for Recognition, and the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Form.

3. Judgment on the main defense of this case

A. Summary of the defendant's assertion

364-8 Land is the pre-donation property that the deceased donated to ** before her birth, and le* at the time she reported and paid gift tax with the value of donated property KRW 195,030,000. However, upon receiving a request for correction thereafter, * the director of the tax office made a request for reduction of the value of donated property KRW 61,578,000 from December 4, 2008 * the assessment of the said value of donated property has become final and conclusive as of December 4, 2008. Thus, the said assessment was completed by adding the said appraised value to the taxable value of inherited property. Accordingly, part relating to the land of this case relating to 364-8 of the disposition of this case related to the land of this case has already been disputed within the scope of invalidation due to the lapse of the filing period, and it cannot be claimed for revocation.

B. Determination

1) Article 13(1)1 of the Inheritance Tax and Gift Tax Act provides that the value of property donated by an ancestor to his/her heir within ten years before the date inheritance commences shall be added to the taxable value of inherited property.

However, there is no legal basis to regard that the gift tax can no longer be contested on the issue of the gift tax imposed by adding the property value to the taxable value of the inherited property on the ground that the period for filing a claim for correction of gift tax can no longer be raised. [The inheritance tax and gift tax are separate items of taxation, and the disposal thereof is made separately, and Article 60(4) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter the same) stipulates that the value of the donated property added to the value of the inherited property pursuant to Article 13 of the same Act is based on the market value as of the

2) Accordingly, the Defendant’s main defense is without merit.

4. Whether the instant disposition is lawful

A. The main text of Article 60(1) of the former Inheritance Tax and Gift Tax Act stipulates that the value of the property on which the inheritance tax is levied is based on the market price as of the date inheritance commences

B. According to the following facts or circumstances acknowledged by comprehensively considering the evidence Nos. 3 through 5, Eul evidence Nos. 8 and 10, appraiser Kim*'s results of appraisal, the officially assessed individual land price is publicly announced as the site or answer, and even if there is a possibility of gaining a profit by housing redevelopment project in the future, it cannot be deemed as property having property value as the land actually used by many unspecified persons at the time of commencing the inheritance, and it is reasonable to view the market price as "(0)."

1) General Rule 61-504 (Evaluation of Roads, etc.) provides that "the roads, rivers, banks, ditches, etc. commonly used by many and unspecified persons shall be included in the inherited property or donated property, but if it is deemed that there is no compensation price or any other property value, such as no compensation price, as of the base date of appraisal." The above provision provides that "if inherited property is actually provided for use by many and unspecified persons as at the time of commencement of the inheritance notwithstanding its land category in the public register, the appraised value shall not be deemed as real property value, except in exceptional cases where the market price at the time of commencement of the inheritance is confirmed by the compensation price, etc., and thus, it shall be reasonable to impose inheritance tax on such inherited property. Therefore, even if the above provision is inconsistent with the guidelines for handling affairs inside the national tax administration agency, it may be deemed as the basis for calculating the market price at the time of commencement of the inheritance (see Supreme Court Decisions 98Du3601, Sep. 3, 199; 8Du361314, 2014).

2) From the past to the present time, the instant land was used as a road by the residents, and it appears that the deceased and the inheritors did not collect usage fees from the residents passing through the road. Moreover, the shape of the instant land is an irregular form less than 2 to 4 meters wide, and both of the instant land appears to be divided from the mother land to be used as a passage for another site in the original vicinity because both the instant land are mixed with a house or a main building, and thus, it appears to have been used as a passage for another site in the vicinity. In light of the shape or use status of the instant land, in the future, it seems impossible for the inheritors to limit the passage of the residents to use the instant land for purposes other than a road, and it would be practically impossible to use

3) Property tax is not imposed on the instant land. Moreover, there is no evidence to deem that the instant land has property value at the time of commencing the inheritance of the instant case, such as where the market value was confirmed by the compensation price.

4) The vicinity of the instant land was designated as the ○○ New Town pursuant to 2005-405 announced on December 16, 2005, and was designated as the ○○○○1 Treasury Urban Promotion Zone pursuant to 2006-357 announced on October 19, 2006, but did not have been granted authorization for the establishment of the said project until now. Moreover, even if the heir gains a substantial benefit from the instant land according to the housing redevelopment project, etc. in the future, there is a concern for the possibility that the taxation on such benefit will be made through the capital gains tax, etc. In addition, it is difficult to recognize the property value of the instant land at the time of commencing the inheritance due to the designation of the renewal promotion zone.

C. Therefore, the instant disposition made by evaluating the instant land as a publicly assessed individual land price at the time of commencing the inheritance is unlawful.

5. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

1) The Plaintiff made a corrective statement to include penalty tax on the first date for pleading.