Ulsan District Court-2018-Guhap-5424 (No. 13, 2018.09)

It is difficult to recognize that the retroactive appraisal value of the instant case is the value assessed by objective and reasonable means;

In light of the fact that the amount of 14 years elapsed from the commencement date of inheritance was only the average value of the retroactive appraisal value, the lapse of time, the division of land, changes in the surrounding environment, etc. are not reflected, the transfer tax can only be reduced at the time it is impossible to correct the inheritance tax, the transfer tax cannot be corrected due to the Do of the exclusion period for imposition of inheritance tax, and the omission in taxation occurs.

Article 60 of the Inheritance Tax and Gift Tax Act

2018Nu23329 Revocation of disposition rejecting capital gains tax rectification

AA

BB Director of the Tax Office

on January 18, 2019

October 16, 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 defendant's refusal to correct the transfer income tax of KRW 200,000,000 to the plaintiff on September 18, 2017 shall be revoked.

1. Basic facts

A. On December 24, 2002, the Plaintiff acquired from the deceased ABC (hereinafter referred to as “the deceased”) a total of 000-0 square meters, 489.6 square meters, 000-0 square meters, and 1,192.7 square meters (hereinafter referred to as “each of the above lands”) from the Busan △△-dong, Busan △△-dong, and a total of 122 square meters, 122 square meters, 122 square meters, 122 square meters, 122 square meters, 1200-0, 20 square meters, and 20 square meters (hereinafter referred to as “each of the above buildings”).

B. On June 21, 2003, the Plaintiff calculated the value of each inherited land and inherited building of this case based on the standard market price (=land value of KRW 0,000,000,000 + building value of KRW 00,000,000 + building value of KRW 00,000,000) on the basis of such calculated value, and reported and paid KRW 00,000,000 of the inheritance tax on each of the above real estate.

C. On January 21, 2005, with respect to shares of 2/15 of each inherited land of this case, the name of AD on January 21, 2005

On July 7, 2008, the ownership transfer registration was made in the name of CW.

D. On February 17, 2015, among each inheritance land of this case, the land of this case was divided into 000-0 large 489 square meters, Busan ○○○-dong, Busan △△△-dong, 000-0 large 424.3 square meters, and 000-0 large 65.3 square meters, among each inheritance land of this case, the land of this case was registered in the name of △△-dong, Busan △△-dong, 000-0 large 1,192.7 square meters for 000-0 large 1,033.7 square meters and the same 000-0-06 large 159 square meters, respectively. The Plaintiff divided the ownership transfer on March 11, 2015 in the name of △△△△-dong, Busan 00-0-424.3 square meters and each of 00-300-Ma-130,000.

E. Meanwhile, each of the instant inherited buildings was destroyed on or around January 10, 2017.

F. On January 13, 2017, the Plaintiff sold to GT any of the instant land, the ownership of which was acquired, to ○○○-dong, Busan, 000-0 and 424.3 square meters of the same 000-0 large 1,033.7 square meters (hereinafter “the instant land”). GT Co., Ltd completed the registration of ownership transfer on each of the said land on January 20, 2017.

G. On June 1, 2017, the instant land was combined with 000-0 large scale 1,458 square meters in Busan-dong, △△-dong, Busan-gu.

H. On March 31, 2017, the Plaintiff reported and paid KRW 1,000,000,000 for capital gains tax on the instant land. The transfer value, which serves as the basis for calculating capital gains tax, was calculated as KRW 6.5 billion. The acquisition value was calculated as the standard market price as of December 24, 2002, including not only the instant trade land but also the instant inheritance building, which was the standard market price as of December 24, 2002, including each of the instant inheritance buildings (=land 1,00,000,000 + building 0,000,000).

I. After selling the land of this case to GT, the Plaintiff requested the central appraisal corporation and Adodo appraisal corporation on December 24, 2002 as of December 24, 2002, which was the date of commencing the inheritance. As a result, the central appraisal corporation was at KRW 2,00,000,000, and at KRW 2,000,000, Gado appraisal corporation was at KRW 2,000,000.

(j) On August 21, 2017, the Plaintiff filed a request for correction to the effect that: (a) the acquisition value of the instant land shall be KRW 2,00,000,000, which is the average value of each of the above appraisal values (hereinafter “instant appraisal value”); and (b) the transfer income tax for each of the instant inherited buildings, which is KRW 50,00,000, which is the standard market price, shall be the acquisition value; and (c) the amount of legitimate tax shall be KRW 1,00,000,000, which is less than the amount of KRW 1,000,000,000, which is the difference between the already paid tax and the legitimate tax amount; (d) the Defendant rejected the Plaintiff’s request for correction on September 18, 2017 (hereinafter “instant rejection disposition”).

(k) On October 17, 2017, the Plaintiff filed a petition for review with the Commissioner of the National Tax Service against the instant rejection disposition, but the petition for review was dismissed on November 30, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8 and Eul evidence Nos. 1, 2 and 3 (including branch numbers), Gap evidence Nos. 10-1 through 4, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

As the Plaintiff succeeds to the land of this case from the deceased, in calculating the transfer income tax on the transfer of the land of this case, the acquisition value of the land of this case shall be calculated based on the "market price stipulated in Article 97 (1) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter the same shall apply) and Article 163 (9) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter the same shall apply)" under Article 60 (1) and (2) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as "Inheritance Tax and Gift Tax Act"). Since the market price of this case, which serves as the basis for calculating the acquisition value of inherited property, is "the normal price established where transactions are conducted freely between many and unspecified persons," the acquisition value of the land of this case shall be deemed as the acquisition value of the first land of this case, and thus, it shall not be deemed as the "the value of the first sale and sale value of this case."

3. Relevant statutes;

Attached Form is as shown in the attached Form.

4. Determination

A. Relevant legal principles

1) Article 163(9) of the former Enforcement Decree of the Income Tax Act provides that where the acquisition value is calculated by applying the "actual transaction value" under Article 97(1)1 (a) of the former Income Tax Act to the assets inherited or donated, the value assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act shall be deemed the actual transaction value at the time of acquisition.

In addition, Article 60 (1) and (2) 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 shall be based on the "market price as of the date of commencing the inheritance or the date of donation," and the "market price" shall include the value generally deemed to be established when transactions are made freely between many and unspecified persons and the amount recognized as the market price, as prescribed by Presidential Decree.

2) Meanwhile, even if the tax authority assessed the value of the inherited property as the officially assessed individual land price for the reason that it is difficult for the tax authority to evaluate the market value of the inherited property at the time of inheritance, if it proves the market value of the inherited property by the time of closing argument at the fact-finding court in the lawsuit seeking revocation of the taxation, it shall determine whether the amount of the taxation exceeds the reasonable amount of tax, and whether the amount of the taxation exceeds the reasonable amount of tax. The "market price" means, in principle, an objective exchange price formed by the ordinary transaction, but this is a concept that includes the value assessed in an objective and reasonable manner, so if there is no exchange price through the transaction, the appraisal price by the reliable appraisal agency may be deemed as the "market price," and even if the value does not change (see, e.g., Supreme Court Decision 2004Du2356, Sept. 30, 205).

(b)review;

If the appraisal price based on retroactive appraisal has evaluated the land of this case in an objective and reasonable manner, it may constitute “market price under the Inheritance Tax and Gift Tax Act.” However, in light of the following circumstances where the purport of the entire pleadings can be known, it is difficult to recognize that the appraisal price of this case is the value appraised by objective and reasonable means.

(1) Article 97 (1) 1 (b) of the former Income Tax Act provides that when it is impossible to confirm the actual transaction value as at the time of acquisition in calculating gains from transfer, it shall be based on the "business example value, appraisal value or conversion value as prescribed by the Presidential Decree". Article 163 (12) of the former Enforcement Decree of the Income Tax Act delegated by it provides that "the value of business example, appraisal value or conversion value as prescribed by the Presidential Decree" means the value under Article 176-2 (2) through (4). The main sentence of Article 176-2 (3) of the former Enforcement Decree of the Income Tax Act provides that "where the transfer value or acquisition value is estimated or revised, it shall be calculated by applying the following methods in sequential order." Article 176-2 (1) 1 (b) of the former Enforcement Decree of the Income Tax Act provides that "where there is an example of sale and purchase of the assets identical or similar to the relevant assets within three months before or after the date of transfer or acquisition, the value at the time of appraisal value shall not be determined by 13 months after the former appraisal value.

As seen earlier, since Article 163(9) of the former Enforcement Decree of the Income Tax Act provides that the value assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act shall be deemed as the acquisition value, it is difficult to view that the above legal doctrine on Article 97(1)1 (b) of the former Income Tax Act, and Article 163(12) of the former Enforcement Decree of the Income Tax Act applies as it is. However, in addition to the case where Article 97(1)1 (b) of the former Income Tax Act and Article 163(12) of the former Enforcement Decree of the Income Tax Act are applied because it is difficult to confirm the actual transaction value within the original meaning of the acquisition value, there is sufficient ground for recognizing the acquisition value of the inherited property as the acquisition value by retroactive appraisal.

② The instant appraisal value is not the average value of the appraisal value appraised by at least two reliable appraisal institutions within three months before and after the date inheritance commences, but is merely the average value of the appraisal value calculated retroactively from the date 14th and six months elapsed from the date the inheritance commences.

③ As part of each of the instant inherited land, around February 17, 2015, approximately 13 years have elapsed since the date of commencing the inheritance, the instant land was divided from each of the instant inherited land around February 17, 2015, and the remainder of each of the instant inherited land, which was not divided into the instant land (○○○○-dong, 000-00 and 000-06 land) was finally transferred two times from 2004 to 2015. Considering the passage of time, division of land, and changes in surrounding environment, it is difficult to readily conclude that the instant appraisal value reflects the objective value normally constituted, if the instant land was traded freely between many and unspecified persons at the time of commencing the inheritance.

④ After the Plaintiff reported and paid the inheritance tax on the instant land based on the initial standard market price (individual land price), the Plaintiff requested an appraisal at two appraisal institutions around May 2017 to June 2017, which had the exclusion period of inheritance tax assessment expired, based on the date of commencing the inheritance as the assessment base date, and filed an application for rectification of capital gains tax by recalculationing the appraisal value based on the appraisal result into the acquisition value of the instant land sold in this case as the acquisition value of the instant land. Thus, it is difficult to conclude that the Plaintiff deemed that the Plaintiff requested the appraisal only for the purpose of reducing capital gains tax at the time of impossibility of rectifying the inheritance tax, and that the appraisal result reflects objective and reasonable

(5) In cases of transferring inherited property, the value equivalent to the tax base of inherited property shall be recognized as its necessary expenses when calculating gains from transfer, and the transfer income tax may be imposed only when capital gains accrue in excess of the above value, and the acquisition value, which is the necessary expense to be deducted from the value of inherited property and the transfer value, shall be the same. However, even though the Plaintiff reported and paid inheritance tax based on the standard market price of the land sold in this case, the exclusion period of imposition of inheritance tax shall not be the same. However, in cases where a disposition to correct capital gains tax is made on the basis of the transfer income tax based on the retroactive assessment, which is higher than the above standard market price (individual land price) after the Plaintiff’s request for reduction or correction after the exclusion period of imposition of inheritance tax was over, the exclusion period of imposition may not be Do of inheritance tax, and the acquisition value, which is

C. Sub-decision

Therefore, since the appraisal value of this case cannot be seen as an amount evaluated objectively and reasonably, it cannot be recognized as the actual transaction value under Article 97 (1) 1 (a) of the former Income Tax Act, Article 163 (9) of the former Enforcement Decree of the Income Tax Act, and Article 60 (1) and (2) of the Inheritance Tax and Gift Tax Act, the above assertion by the plaintiff is without merit, and therefore, the rejection disposition of this case

5. Conclusion

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