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특수관계없는자로부터 저가로 취득한 부동산의 차액을 증여로 본 처분의 당부(기각)
조세심판원 조세심판 | 2008-12-29 | 조심2008중2915 | 상증
[Case Number]

early 208 Heavy2915 ( December 30, 2008)

[Items]

Donations

[Types of Decision]

Dismissal

[Summary of Decision]

The disposition imposing gift tax on the claimant is not erroneous because it is difficult to view it as acquisition value through a normal transaction, and there is no justifiable reason in light of transaction practices.

[Related Acts]

Article 2 of the Inheritance Tax and Gift Tax Act (Taxables Subject to Gift Tax / Inheritance Tax and Gift Tax Act / Donations of profits accrued from transfer at low prices or high prices)

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. On September 28, 2006, the claimant acquired 1,410,000,000 won from the old owner’s OOOOOOO 584.5 square meters and 197.76 square meters of buildings (hereinafter “sub-owned real estate”) without special relation.

B. At the time of regular audit by the National Tax Service, the head of the OOO tax office acquired the key real estate at a price significantly lower than the market price and notified the disposition authority of taxation data following local correction that the benefit therefrom constitutes gift. The disposition authority decided 835,738,320 won, subtracting 300,00 won from the difference between the acquisition price and 2,524,738,320 won which assessed the key real estate as the standard market price, and 1,410,000,000 won, and notified the applicant of May 16, 2008 of the determination of 238,630,730 won as donated property.

C. The claimant appealed and filed an appeal on August 14, 2008.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

In order to use the key real estate as a hospital site on September 28, 2006, the former owner of the key real estate acquired at the arm's length price as the market price at the time to use the key real estate in the hospital site at a lower level than the standard market price in order to use it for about 1.3 billion won and 1.5 billion won in the neighboring real estate brokerage office in 2004. The former owner of the key real estate acquired at the price at the time. The land at issue (hereinafter referred to as the "contest land") is 15 meters in length abutting on the side, and the entry from the side abutting on the road to the inside of 38 meters in a rectangular form, up to 18 meters in width, the officially assessed land price of 206 in the vicinity is 4,260,000 won per square meter, but the publicly assessed land price of 18.38 meters and 38 meters in the inside of the inside is reasonable to calculate the acquisition price of the real estate due to the difference between the related parties.

(b) Opinions of disposition agencies;

The officially assessed individual land price of the key land is calculated by parcel in consideration of the purpose of use, topographical features, road conditions, etc., and the officially assessed individual land price of the key land is reasonably calculated. As such, the standard market price of the key real estate is KRW 2,524,738,320, and the price of the right to collateral security at a financial institution reaches KRW 2.7 billion without any justifiable reason, the disposition imposing gift tax on the applicant pursuant to Article 35 of the Inheritance Tax and Gift Tax Act is justifiable

3. Hearing and determination

A. Key issue

The propriety of the disposition imposing gift tax on the difference between the standard market price and the acquisition price by acquiring the key real estate from an unrelated party at a price significantly lower than the market price; and

B. Relevant statutes

In case where there is donated property as of the donation date falling under any of the following subparagraphs, due to the donation by another person (excluding donation becoming effective due to the death of a donor; hereinafter the same shall apply), the gift tax shall be levied, pursuant to this Act, on such donated property:

1. Where a person who has received a donation of property (hereinafter referred to as " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59), all of the donated property donated to the resident;

2. Where a donee is a non-resident (including a non-profit corporation, the head office or main office of which is not located in Korea; hereafter the same shall apply in this Article and Articles 4 (2) and 6 (2) and (3)): all of the property donated to a non-resident in Korea.

Article 35 of the same Act, the donation, etc. of profits from the transfer at a low price or high price transfer . (1) When the relevant property is acquired or transferred to a person who falls under any of the following subparagraphs, the amount equivalent to the difference between the price and the market price shall be regarded as the value of donated property.

1. Where a person takes over property from a third person at a price lower than the market price, the transferee of such property;

2. In case where the property is transferred to another person at a price above the market price, the transferor of such property;

(2) In the application of the provisions of paragraph (1), where property is acquired or transferred between persons other than those having a special relationship, the amount equivalent to the profits as prescribed by the Presidential Decree shall be presumed to have been donated the difference between the price and the market price only when the property is acquired or transferred at the price significantly lower than the market price without any justifiable reasons in light of transaction practices, and the amount equivalent to such

(3) Persons in a special relationship as referred to in paragraph (2), the scope of value significantly low or high shall be prescribed by Presidential Decree.

Article 26 of the Enforcement Decree of the same Act (the method, etc. for calculating profits following the transfer at a low price or high price) (1) The term "low price" in Article 35 (1) 1 of the Act means the price, in case where the value (referring to the value assessed under the provisions of Articles 60 through 66 of the Act; hereinafter referred to as "market price" in this Article and Article 31) calculated by subtracting the price from the market price (referring to the value assessed under the provisions of Articles 60 through 66 of the Act; hereinafter referred to as "market price") of the acquired property (excluding

(2) The term "high price" in Article 35 (1) 2 of the Act means the price where the value obtained by subtracting the market price from the price of the transferred property (excluding that falling under any subparagraph of paragraph (1) is 30/100 or more of the market price or where the difference is not less than 300 million won.

(3) The term “profit prescribed by the Presidential Decree” in the main sentence of Article 35 (1) of the Act means the difference between the price calculated under paragraphs (1) and (2) and the market price, which is the value less the smaller of the following:

1. Where the value obtained by subtracting the price from the market price is at least 30/100 of the market price or at least 30/100 of the market price, the value equivalent to 30/100 of the market price;

2. Three hundred million won.

(5) The term " significantly low price" in Article 35 (2) of the Act means a price in cases where the value of the property acquired (excluding that falling under any subparagraph of paragraph (1) minus such a price from the market price is 30/100 or more of the market price.

(6) The term “ remarkably high price” in Article 35 (2) of the Act means the price in case where the value obtained by subtracting the market price from the price of transferred assets (excluding those falling under any subparagraph of paragraph (1) is at least 30/100 of the market price, and such price is at least.

(7) The term “gains prescribed by the Presidential Decree” in Article 35 (2) of the Act means the amount calculated by subtracting 300 million won, respectively, from the difference between the price calculated under the provisions of paragraphs (5) and (6) and the

C. Facts and determination

(1) According to this case’s taxation-related data, real estate register, etc., the claimant acquired the key real estate (584.5 square meters in a site, 197.76 square meters in a building) from the old OO of the former owner, who has no special relation, in KRW 1,410,00,000, and the former owner acquired the transfer margin under the standard market price on November 30, 2006 as the transfer margin exceeding the actual transfer value, and thus, it is confirmed that the pre-sale return was made to the head of the OOO tax office with the transfer margin of KRW 1,410,00,000 as the transfer margin.

(2) According to the gift tax decision resolution, etc., the head of the OOO office notifies the disposition agency of taxation data on local correction that the real estate acquisition value of the claimant's key real estate is remarkably low due to the transactional practice, and thus, the disposition agency shall determine 835,738,320 won which assessed the real estate as the standard market price and the acquisition price of 1,410,000 won which deducted 30 million won from the difference between the acquisition price of 2,545,738,320 won which assessed the real estate as the standard market price and the acquisition price of 1,410,000, and verify that the applicant imposed gift tax

(3) The claimant acquired the normal price from the pre-owner who did not have any special relation as the hospital site that is lower than the surrounding market price because a rectangular shape, which is 15 meters wide and 38 meters wide from the surface of the pertinent land, is not good, and the land price of the land adjacent to the key land was set at KRW 4,260,000 per square meter from the side to the inside of 18 meters, and the officially assessed individual land price of the land adjacent to the key land was set at KRW 1,30,000 per square meter and the standard market price of the land cannot be seen as the normal price because the market price cannot be seen as the normal price due to the lack of reflection of the market price, and there is no assertion that the disposition imposing the gift tax is unfair, and there is no fact that the officially assessed individual land price of the key land was corrected by a lower adjustment to the price of the land.

(4) According to the register of real estate and appraisal-related materials, etc. of the claimant acquired the key real estate on September 28, 2006, the appraisal value of the key real estate which was requested by OOOOOOOOOOO which was given a loan of KRW 1,80,000,000 (the maximum bond amount of KRW 2,70,000,000) shall be KRW 3,052,88,800,000, and the appraisal value of the key real estate which was requested by OOOOOO for loan purposes shall also be KRW 2,922,50,00,000 (the maximum bond amount of KRW 2,760,000,00). The appraisal corporation shall be compared with the form of the land that is similar to that of the main land, and there is no particular difference between the appraisal factors and the form of the three lots.

(5) Under Article 35 of the Inheritance Tax and Gift Tax Act, in case where the property is acquired from others at a price lower than the market price, or the property is transferred from others at a price higher than the market price, the amount equivalent to the difference between the price and the market price shall be the value of the property donated to the person who acquired such profits. In case where there is no special relation, there is no justifiable reason in light of transaction practices, the acquisition price of the real estate in question (1,410,00,00) shall not apply. In this case, the acquisition price of the real estate in question (2,545,738,320) shall be 55% of the price assessed as the standard market price (2,545,738,320,000) and the difference shall be 1,135,738,320 won. The appraisal price reflecting the market price at the time of the acquisition shall not be considered as the acquisition price through a normal transaction, and there is no justifiable reason in light of transaction practices.

4. Conclusion

This case shall be decided as ordered by Article 81 and Article 65(1)2 of the Framework Act on National Taxes, because the petition is without merit as a result of the review.

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