Transfer of Examination 2017-127 ( November 30, 2017)

No retroactive appraised value may be computed as acquisition value of capital gains tax.

The value which has been assessed retroactively after the exclusion period of inheritance tax has been completed shall have been appraised in its original form, and it shall be hard to view that the value of the land has been reflected in an objective value freely established between many and unspecified persons at the time of evaluation.

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2018Guhap5424 (Revocation of Disposition of Refusal to Correction Transfer Income Tax)

AA

CC director of the tax office

June 28, 2018

September 13, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's refusal to correct the capital gains tax of KRW 206,468,038 against the plaintiff on September 18, 2017 shall be revoked.

1. Facts of recognition of the disposition, etc.;

A. On December 24, 2002, the Plaintiff is entitled to each of the following real estate from the Sigian on December 24, 2002:

was acquired on the ground of inheritance.

489.6m2 located in the Seosan-dong, Busan Metropolitan City.

The inheritance land of this case is referred to as "the inheritance land of this case by combining each of the above land with a lot of 1,192.7 square meters (hereinafter referred to as "the land of this case") located in the Sinsan-dong

12* Of the inherited land of this case, 634.71m2 (hereinafter referred to as "the building of this case") in total of the two above ground buildings

B. On June 21, 2003, the Plaintiff reported inheritance tax to the tax authority on the instant inherited land and the instant building on June 21, 2003, calculated the value of inherited property as KRW 1,826,128,280 based on the standard market price (=land 1,794,346,600 + building 31,781,680) and filed a return on tax amount of KRW 109,438,029, which is calculated based thereon.

C. On February 17, 2015, the instant inherited land was divided and combined into a 1,458 square meters located in the Dongsan-dong, Busan Metropolitan City (hereinafter “instant transaction land”) and a 159 square meters located in the same Dong and a 65.3 square meters located in the same Dong.

라. 원고는 2017. 1 . 13. 주식회사 QQQ에게 이 사건 매매토지 및 이 사건 건물을 6,500,000,000원에 매도하였다.

E. On March 31, 2017, the Plaintiff reported and paid capital gains tax of KRW 1,304,610,696,696, which was calculated by evaluating the acquisition value of the instant land and the instant building as the standard market price at the time of December 24, 2002, which was the date of commencing the inheritance (=land 1,555,116,800 + building 57,123,900).

F. On June 23, 2017, the Plaintiff requested an appraisal corporation of the two sites to calculate the appraisal value at the time of December 24, 2002, which was the date commencing the inheritance. As a result of the appraisal, the Plaintiff calculated the appraisal amount of KRW 2,315,304,00 (per 1,588,000), and KRW 2,287,602,000 (per m2,569,000 per m2) as the result of the appraisal.

G. On August 21, 2017, the Plaintiff: (a) calculated the acquisition value of KRW 2,301,453,000, the average of the above appraisal value (hereinafter “the appraisal value of this case”); (b) calculated the transfer income tax by applying the acquisition value of KRW 57,123,90, the standard market price for the building of this case; and (c) filed an application for reduction or correction of the transfer income tax to request refund of KRW 206,468,038, out of the transfer income tax reported and paid as described in the above (e).

H. On September 18, 2017, the Defendant rejected the Plaintiff’s claim for correction on the ground that the instant appraisal value was retroactively appraised at the expiration of 14 years and six months from the date the inheritance commences, and it does not constitute the appraisal value assessed within six months before and after the base date of appraisal, and thus cannot be deemed as acquisition value (hereinafter “instant disposition”).

I. On October 17, 2017, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service against the instant disposition, but the request for examination was dismissed on November 30 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7 (including branch numbers in case of additional number), Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In calculating capital gains tax, the acquisition value of assets necessary for the calculation of the acquisition value shall be calculated as the market value as of the date inheritance commences, in cases of inherited assets. If there is an appraisal value by a reliable appraisal institution, the acquisition value should be recognized as the acquisition value inasmuch as it has been proven the objective and reasonable market value as at the time inheritance commences even if it was retroactive appraisal. Therefore, the disposition of this case

(b) Related statutes;

Attached Acts and subordinate statutes

C. Determination

1) Relevant legal principles

According to Article 97 (1) 1 (a) of the former Income Tax Act (amended by Act No. 15225, Dec. 19, 2017; hereinafter the same) and Article 163 (9) of the Enforcement Decree of the Income Tax Act, the acquisition value that is deducted as necessary expenses when calculating gains from transfer refers to the actual transaction value at the time of acquisition of the assets. In the case of inherited assets, the value appraised under the provisions of Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the commencement date of inheritance is deemed as the actual transaction value at the time of acquisition.

According to Article 60(1) and (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 15224, Dec. 19, 2017; hereinafter the same), the value of the property on which inheritance tax is imposed shall be the market value as of the date the inheritance commences, and the market value includes the value which is generally deemed to have been established in cases of free transactions between many and unspecified persons, and the value which is recognized as the market value, as prescribed by Presidential Decree, such as the expropriation price, public sale price, and appraisal price. The main sentences of Article 49(1) and 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 27835, Feb. 7, 2017; hereinafter the same shall apply) include one of the “value recognized as the market value as prescribed by Presidential Decree” among the “value recognized as the market value, the average value of appraisal values appraised by two or more reliable appraisal institutions with respect to the relevant property for a period not exceeding six months before or after the commencement date.

In full view of the above Acts and subordinate statutes, the market value of the real estate as of the commencement date of inheritance shall be recognized as the acquisition value of the inherited property as of the commencement date of inheritance. If the appraisal value of a reliable appraisal institution is based on retroactive appraisal, it can be seen as the market value regardless of whether it was based on retroactive appraisal, so the appraisal value by retroactive appraisal may also be recognized as the acquisition value

Therefore, the following is examined as to whether the appraisal value of the instant case can be recognized as the acquisition value of the instant land based on the detailed circumstances of the instant case.

2) Whether the appraisal value of the instant case can be recognized as acquisition value

According to the following circumstances revealed by adding up the purport of the entire pleadings as seen earlier, it is difficult to recognize that the instant appraisal value constituted the acquisition value as of the commencement date of inheritance of the instant sale land.

① The instant appraisal value is merely the average value of the two appraisal values calculated retroactively after the lapse of 14 years and six months from the date the inheritance commences. Considering the passage of time, division and merger of land, and sudden change in the surrounding environment, it is difficult to view that the instant appraisal value reflects the generally established objective value in a case where a free transaction is made between many and unspecified persons at the time of the date of commencing the inheritance, by appraising the instant appraisal value in its original form.

② Although the transfer income tax at issue in this case covers both the sale and purchase land of this case and the building of this case, the appraisal value of this case is limited to the sale and purchase land of this case.

③ Since the exclusion period of inheritance tax on the Plaintiff’s inheritance land and the building of this case is ten years from the date following the statutory due date of return (six months from the last day of the month in which the commencement date of inheritance falls), the Defendant may impose inheritance tax on the Plaintiff from June 1, 2003 to May 31, 2013, which is the day following the day six months from the last day of the statutory due date of return, which is the statutory due date of return. However, the Plaintiff reported the inheritance tax on the instant inherited land and the building of this case based on the initial standard market price, and requested an appraisal to an appraisal agency located at the end of June, 2017, the exclusion period of inheritance tax was determined as the commencing date of inheritance only on the land of this case, and the acquisition price of the instant land was revised based on the average value of two appraisal values thereafter. Considering these circumstances, it is objectively difficult to view that the Plaintiff requested the appraisal for the purpose of reducing the transfer income tax after the lapse of the exclusion period of inheritance tax imposition.

④ In a case where inherited property becomes a subject matter of transfer by an heir later, it is logical that the original return value of inherited property becomes the acquisition value of capital gains tax. For this reason, Article 97(1)1 (a) of the former Income Tax Act and Article 163(9) of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis to the calculation of the acquisition value of inherited property under the Inheritance Tax and Gift Tax Act. Considering this, it is difficult to view the appraisal value acquired through retroactive appraisal for the purpose of tax payment after the expiration of the exclusion period of inheritance tax imposition after paying the inheritance tax based on the standard market price. Therefore, the instant appraisal value cannot be deemed as a value recognized as the market price in light of the purport of Article 49(1) and 2(a) of the former Enforcement Decree

3) Sub-decisions

Therefore, the defendant's disposition rejecting the plaintiff's request for correction is legitimate by making the appraisal value of this case as the acquisition value.

3. Conclusion

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

shall be ruled.