Whether each subparagraph of Article 49(1) of the former Inheritance and Gift Tax Act is an exemplary provision concerning the market price of inherited property (affirmative), and whether the appraisal value of a reliable appraisal institution may be deemed the market price (affirmative)

The main sentence of Article 60 (1) of the Inheritance Tax and Gift Tax Act provides that the value of the property on which the inheritance tax or gift tax is levied under this Act shall be the market value as of the date commencing the inheritance tax or the date of donation. Article 60 (2) of the same Act provides that the market value under the provisions of paragraph (1) of the same Article shall be the value which is generally deemed to be established in the event of free trade between many and unspecified persons, and shall include the amount which is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as the expropriation, public sale price, and appraisal price. Article 49 (1) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971 of Dec. 31, 1998) provides that "the value of the property which is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as expropriation, public sale price, and appraisal price, which are included in the market value under the provisions of Article 60 (2) of the former Inheritance Tax and Gift Tax Act shall be included in the market value of the property at issue:

Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act, Article 49(1) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971, Dec. 31, 1998)

Supreme Court Decision 86Nu584 delivered on December 9, 1986 (Gong1987, 172), Supreme Court Decision 89Nu2509 delivered on October 10, 1989 (Gong1989, 168), Supreme Court Decision 92Nu897 delivered on April 13, 1993 (Gong1993, 1414), Supreme Court Decision 92Nu19323 delivered on July 27, 1993 (Gong193Ha, 2452), Supreme Court Decision 94Nu5960 delivered on August 23, 1994 (Gong194Ha, 2555), Supreme Court Decision 94Nu574959 delivered on September 27, 1994 (Gong194, 2559)

Plaintiff 1 and four others (Attorneys Kim Ba-young et al., Counsel for the plaintiff-appellant)

Head of Suwon Tax Office

Busan High Court Decision 2000Nu390 delivered on May 26, 2000

The judgment below is reversed, and the case is remanded to Busan High Court.

1. First point:

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance on the premise that only "the average value of the appraised value of property assessed by an appraisal agency, other than inheritance tax and gift tax, which is determined by Ordinance of the Prime Minister, is recognized as the market value" under Article 60 (1) and (2) of the Inheritance Tax and Gift Tax Act and Article 49 of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971, Dec. 31, 1998; hereinafter referred to as the "Enforcement Decree"), and the purport that the appraised value is included in the market value, not all of the accepted, public auction price and appraised value as stipulated in Article 60 (2) of the Act, but is included in the market value. Thus, the court below determined that the appraisal value of the land of this case, which the plaintiffs reported as the market value of this case to the market value of this case, is legitimate by requesting a supplementary appraisal corporation under Article 49 (1) 2 of the Enforcement Decree of the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

However, the main text of Article 60(1) of the Act provides that the value of property on which inheritance tax or gift tax is levied under this Act shall be the market value as of the date commencing the inheritance or the date of donation. Article 60(2) of the Act provides that the market value under the provisions of Article 60(1) of the Act includes the value which is generally deemed to be established when free transactions are conducted between many and unspecified persons and which is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as the expropriation, public sale price, and appraisal price. Article 49(1) of the Enforcement Decree provides that “The market value is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as expropriation, public sale price, and appraisal price” under the provisions of Article 60(2) of the Act refers to six months before the base date of appraisal before the base date of return of inheritance tax base or gift tax base. Since there is a sale fact on the property in question, if there is an appraisal value assessed by a public trust institution for purposes other than payment of inheritance tax and gift tax, the market value can be deemed as the market value.

Nevertheless, without examining whether the appraisal value of the instant land by a dialogue appraisal corporation is an objectively reasonable method and can be seen as the market price, the court below rejected the appraisal value solely on the ground that the appraisal value is not included in the market price under Article 49(1)2 of the Enforcement Decree. The court below erred by misapprehending the legal principles on the evaluation of inherited property, which affected the conclusion of the judgment, by misapprehending the legal principles on the evaluation of inherited property.

2. Second point:

Examining the reasoning of the judgment of the court below in light of relevant statutes and records, the court below is just in admitting the judgment of the court of first instance, and judged that the part of ○○○○○○, among the buildings of this case, was a store facility which is not a cultural facility, and there is no error of law by misunderstanding legal principles

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)