Seoul Administrative Court-2018-Gu Group-61034 ( November 28, 2018)

Seocho 2018west 512 ( October 19, 2018)

Even if there is no evaluation amount of the inheritance tax and gift tax on the land inherited before the public notice of the officially assessed individual land price, it can be seen as the actual transaction price at the time of acquisition.

The provisions of Article 163 (9) of the Enforcement Decree of the Income Tax Act can be deemed as the actual transaction price at the time of acquisition even if there is no "amount assessed on the gift tax and gift tax on the land inherited before the public notice of the officially assessed individual land price was given on August 30, 1990, and such provision cannot be deemed as violating the superior law.

Article 163 of the Enforcement Decree of the Income Tax Act (Necessary Expenses for Transferred Assets)

2018Nu78109 Revocation of Disposition of Imposing capital gains tax

O KimO

O Head of tax office

Seoul Administrative Court Decision 2018Gudan61034 decided November 28, 2018

July 12, 2019

November 1, 2019

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The decision that the defendant revoked the disposition of imposition of the capital gains tax belonging to the year 2015 against the plaintiff on September 28, 2017.

1. Quotation of judgment of the first instance;

The ground for appeal by the plaintiff is not significantly different from the argument in the first instance court, and the fact-finding and decision in the first instance court are justified even if the evidence submitted in the first instance court was presented in addition to the evidence submitted in this court.

Therefore, the court's reasoning for this case is as stated in the reasoning of the judgment of the first instance except for the addition as follows. Thus, the court's reasoning for this case is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. Summary of the plaintiff's assertion

The provision of the Enforcement Decree of this case is premised on the comparison between the appraised amount of the Inheritance Tax and Gift Tax Act and the standard market value under the language and text, and therefore, the provision of the Enforcement Decree can only be applied in cases where both the appraised amount of the Inheritance Tax and Gift Tax Act and the standard market value can be calculated. Thus, in this case where the appraised amount of the Inheritance Tax and Gift Tax cannot be calculated, the acquisition value shall be calculated by the transaction example, appraisal value or conversion value prescribed by the Presidential Decree pursuant to Article 97 (1) 1 (b) of the former Income Tax Act.

B. Determination

The provision of the Enforcement Decree of this case is reasonable to interpret that even if there is no "amount assessed on the gift tax and gift tax on the land inherited before the public notice of individual land price was given on August 30, 1990, the "standard market price" can be considered as the actual transaction price at the time of acquisition, and such interpretation is not contrary to the principle of no taxation without the law or prohibition of retroactive taxation, or the contents of the Enforcement Decree of this case violate the superior law

Article 97 (1) 1 of the former Income Tax Act provides that "acquisition value equivalent to necessary expenses to be deducted from the transfer value when calculating gains on transfer of a resident." Specifically, "the standard market value at the time of acquisition of assets referred to in each subparagraph of Article 94 (1)" shall be the acquisition value in principle in cases falling under the main sentence of Article 96 (2) (a) and "the standard market value at the time of acquisition of the assets" in the main sentence of subparagraph (a) of the same Article shall be deemed as "the acquisition value at the time of acquisition" (Article 96 (1) 1 (b) of the former Income Tax Act). Meanwhile, in cases where the actual transaction value at the time of acquisition cannot be confirmed in cases falling under the main sentence of subparagraph (b) of the same Article, "the actual transaction value" in Article 97 (1) 1 (a) of the former Income Tax Act shall be deemed as "the actual transaction value at the time of inheritance or donation" in the main sentence of Article 97 (1) 1 (a) of the Inheritance Tax and Gift Tax Act shall be deemed as "the value at the date of inheritance or donation under the following provisions of Article 160:

According to the relevant legal system, the "acquisition value" is, in principle, the "actual transaction value", and in calculating the "actual transaction value", it is based on the "amount appraised as of the date of commencing the inheritance or donation as of the date of donation," and in the case of the land inherited or donated before the public notice of the officially assessed individual land price on August 30, 1990, it is based on the "amount appraised as of the Inheritance Tax and Gift Tax Act" and the "standard market value", and even according to such a method, it is possible to calculate the actual transaction value, only when it is impossible to calculate the actual transaction value.

The purpose of the amendment of the Enforcement Decree of this case is to "To improve the taxable value of inheritance tax and gift tax as of the date of inheritance or donation because there are many cases where it is difficult to confirm the taxable value of the land acquired prior to the implementation of the individual land price system prior to August 30, 1990" (No. 1-3 and No. 7). In the case of land inherited or donated prior to the public notice of the officially assessed individual land price on August 30, 1990, there are cases where it is difficult to apply the appraised value under the Inheritance Tax and Gift Tax Act at the time of inheritance or donation due to difficulties in confirming the decision of inheritance or gift tax, so that it is difficult to apply the appraised value under the Inheritance Tax and Gift Tax Act at the time of inheritance or donation due to the lack of confirmation of the decision of inheritance or gift tax (No. 1-2)

In full view of the purport of the above amendment and the legal system as seen earlier, the "acquisition value" equivalent to the necessary expenses to be deducted from the transfer value in calculating transfer margin shall be applied first to subparagraph 1 (a) of Article 97 of the former Income Tax Act (Article 97 (1) 1 (b) of the same Act provides that "in the case of the main sentence of item (a) and where it is impossible to confirm the actual transaction value at the time of acquisition," "actual transaction value" in the main sentence of Article 97 (1) 1 (a) of the former Income Tax Act is specified in the Enforcement Decree of the same case, and where it is difficult to calculate the "actual transaction value" through the provisions of the Enforcement Decree of the this case, it shall be supplemented by the "standard market value" (Article 97 (1) 1 (a) of the same Act, and Article 97 (1) 1 (b) of the same Act provides that if the "acquisition value" can be calculated in full, it shall be applied to the "evaluation value" or the "standard market value at the time of acquisition value" (i.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.