early 2009west2037 (Law No. 9, 2009)

Acquisition time of transferred real estate by an heir shall be the commencement date of inheritance.

In calculating the transfer income amount of the real estate transferred after inheritance, the time of acquisition being the basis for calculating the acquisition value and special long-term holding deduction shall be the commencement date.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's refusal to correct the capital gains tax against the plaintiff on January 29, 2009 shall be revoked.

1. Details of the disposition;

A. On June 4, 200, the Plaintiff, the husband, was a house of 44-97 large 262.81m2 and 2nd m2 above ground of the SeoulCC-dong BBB-dong 44-97 large 262.81m2 (hereinafter referred to as “the above site and the building, and the instant real estate was combined with the

C) After acquiring the real estate by inheritance, on August 1, 2008, the real estate of this case was transferred to 2,310,345,000 won, and on October 31, 2008, the transfer price of the real estate was 2,310,345,000 won, and the acquisition price was 321,150,053 won, calculated at the time of commencement of the inheritance.

B. On December 19, 2008, the Plaintiff filed a claim to correct the transfer income tax of the said real estate as KRW 92,972,257 (the reduced tax amount KRW 205,232,470) on the ground that the time of acquisition of the instant real estate was not the date of commencing the inheritance but the acquisition of the inheritee ought to be deemed to be the acquisition value and the special deduction for long-term holding.

C. On January 29, 2009, the Defendant rendered the instant disposition rejecting the Plaintiff’s claim for correction on the ground that the acquisition value and special deduction for long-term holding should be considered as the time commencing an inheritance in calculating transfer income tax in cases where inherited property is transferred to the Plaintiff pursuant to Articles 95(3) and (4), 162(1)5, and 163(9) of the Income Tax Act.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 9, Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Around 1978, the Plaintiff acquired the instant real estate under the husband’s name and continued to possess it solely due to the division after the husband died, and transferred the said real estate in the form of expropriation to the Seoul Special Metropolitan CityCC as a result of the implementation of the construction of the Seoul Specialized Administrative City Building Corporation. However, in calculating the acquisition price and the special deduction for long-term possession, the acquisition price shall be reduced by deeming the time of acquisition to be the commencement date of inheritance in calculating the tax base for the payment of the transfer income tax again on the ground that the husband died before the Plaintiff was transferred while the Plaintiff was holding the real estate for a long time and transferred the real estate to the Plaintiff, the acquisition price shall be reduced by deeming the time of acquisition to be the commencement date of inheritance, and the disadvantage that the retention period is reduced due to the reduction of the acquisition period shall be deemed to be a discrimination without

(2) Furthermore, the Plaintiff could not freely determine the transfer value and the timing of transfer due to the Plaintiff’s transfer of the instant real estate in the form of expropriation to the Seoul Metropolitan GovernmentCC. Accordingly, the Plaintiff was unable to be subject to Article 95(3) of the Income Tax Act amended on December 26, 2008 and Article 160(2) of the Enforcement Decree of the same Act, which was amended on February 24, 2009, as amended on February 24, 2009, the provision on the calculation of transfer margin and the amount of special deduction for long-term possession of high-priced houses, which are more favorable under Article

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination on the first argument

According to Articles 94(1), 96(1), and 97(1)1(a)(b) and (b) of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same shall apply), the transfer income of real estate shall be an amount calculated by deducting the special long-term holding deduction amount from transfer margin after deducting necessary expenses, including acquisition value, from transfer value; and in calculating transfer margin, the transfer value and acquisition value shall be based on the actual transaction amount as at the time of transfer and acquisition; if the time of transfer and acquisition cannot be confirmed by delegation by the Presidential Decree, the actual transaction value as at the time of acquisition shall be determined by the Presidential Decree. In applying the special long-term holding deduction, the holding period shall be the date of acquisition of the relevant real estate; in applying Article 97(5) of the former Income Tax Act, necessary matters concerning the calculation of the amount equivalent to the actual transaction value at the time of acquisition; and in applying Article 16(1) through (6) of the former Enforcement Decree of the Income Tax Act, the Inheritance Tax Act or the gift tax Act shall be prescribed by Presidential Decree.

In full view of the purport of each provision above, in cases where gains from the transfer of real estate acquired by inheritance are calculated based on the actual amount of transaction, the time of acquisition shall be deemed the date of commencement of inheritance pursuant to Article 162(1)5 of the former Enforcement Decree of the Income Tax Act. This is a legitimate provision pursuant to delegation of the mother Act, which is a provision under Article 98 of the former Income Tax Act, which delegates the time of transfer of assets and the time of acquisition to the extent prescribed by the Presidential Decree. Furthermore, in cases where real estate acquired by inheritance as above is transferred, it shall be deemed that the actual transaction value required for acquisition can be calculated based on the transaction example, appraisal value, or conversion value prescribed by the Presidential Decree. However, in cases of real estate acquired by inheritance, separate provision as to the actual transaction value at the time of acquisition should be established as at the time of acquisition because there is no actual transaction value at the time of acquisition. Therefore, in cases of assets inherited or donated by inheritance under the main sentence of Article 163(9) of the former Enforcement Decree of the Income Tax Act, the said Act shall be deemed as the actual transaction value determined as at the date of inheritance or donation.

(2) Judgment on the second argument

Furthermore, Article 95(3) and Article 160(2) of the Enforcement Decree of the Income Tax Act amended on December 26, 2008 (amended on February 24, 2009) revised in favor of taxpayers, rather than where a provision on the calculation of transfer margin of expensive houses and special long-term holding deduction was transferred before the enforcement of each of the above amendments. In such a case, whether the amended provision applies retroactively to the legislative purpose, policy, and technical judgment of the pertinent provision is given to legislators. As such, Article 3 of the Addenda of the Enforcement Decree of the Income Tax Act of February 24, 2009 provides that the scope of application of the amended provision of transfer income tax shall be applied from the transfer after the amendment, and even if it is difficult to apply the above amended provision to transfer assets before the amendment, it cannot be deemed an illegal provision that infringes on citizens' property rights. Moreover, it is difficult to expect that the relevant provision of the Income Tax Act can be freely applied due to the amendment of the Income Tax Act, and thus, it cannot be seen as the Plaintiff’s statutory and statutory provisions in accordance with the aforementioned amendment.

(3) Sub-decisions

Therefore, it is legitimate to regard the acquisition time, which serves as the basis for calculating the acquisition value and the special deduction for long-term holding, as the commencement date of inheritance, in calculating the transfer income from the actual transaction amount of the real estate of this case, which is the real estate transferred after the defendant acquired by inheritance pursuant to Articles 162(1)5 and 163(9) of the former Enforcement Decree of the Income Tax

3. Conclusion

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