In the process of obtaining a loan for several real estate as collateral, where a mutual savings and finance company evaluates the value of each real estate for each real estate, and where part of the above real estate was donated after a joint collateral mortgage was created on the whole real estate, the method of calculating the amount of gift tax for such

If a mutual savings and finance company, in receiving a loan from its own real estate as security, has a joint collateral security within the scope of the aggregate amount assessed by the value of each of the above real estate and assessed by the mutual savings and finance company, and if the joint collateral security was created with the maximum debt amount, the value of the transferred real estate shall be calculated in accordance with Article 9(4) of the former Inheritance Tax Act (amended by Act No. 4022 of Dec. 26, 1988) and subparagraphs 2 and 3 of Article 5-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12567 of Dec. 31, 1988), and the above maximum debt amount shall not be calculated in proportion to the taxation standard amount under the Local Tax Act, but shall be calculated in proportion to the value of each real estate appraised by the said mutual savings and finance company at the time of the establishment of the joint collateral security.

Article 9 of the former Inheritance Tax Act (amended by Act No. 4022 of Dec. 26, 198) and Article 5-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12567 of Dec. 31, 1988)

Madive Notes

The director of the tax office

1. The Defendant’s disposition of gift tax amounting to KRW 20,403,530 and the defense tax amounting to KRW 3,709,730 on December 16, 198, revoked the part exceeding KRW 5,427,678 and the defense tax amount exceeding KRW 986,851.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

In the imposition of gift tax of KRW 20,403,530 on December 16, 198 and its defense tax of KRW 3,709,730, the Defendant’s portion of the gift tax exceeding KRW 3,710,445 and the defense tax of KRW 22,127 is revoked.

The judgment that the lawsuit costs shall be borne by the defendant.

In full view of the preceding purport of the argument as to Gap evidence 1-1-2, Gap evidence 8-2, Eul evidence 1-1-2, Eul evidence 1-2, and Eul evidence 3-2 and 3 (pro rata property appraisal report) without dispute, the defendant shall assess the amount remaining 4-4 and 390 square meters of Gyeonggi-gun 49-7 and above above ground house (hereinafter "real estate in this case"), 5-20-1000 won for the above real estate under the Inheritance Tax Act, 5-20-100 won for the above real estate, 5-20-100 won for the above real estate under the above provision, 5-20-100 won for the first time, 5-100 won for the above real estate, 5-14 won for the first time, 60-5 won for the first time, 30-5 won for the first time, 198-14 won for the second time, 60-15 percent of the total amount of gift tax under the Inheritance Tax Act.

In regard to the Defendant’s assertion that the instant taxation disposition was lawful on the grounds of the aforementioned disposition grounds and applicable provisions of law, the Plaintiff asserted that the market price of the said real estate at the time of September 14, 1987, which was the date of deemed donation of the instant real estate, was KRW 18,621,640, and thus, the amount should be calculated based on the donation amount and the defense tax. However, the instant taxation disposition, which made the amount calculated in proportion to the standard market price of the instant joint collateral mortgage, which was already cancelled at the time of imposing the gift tax of this case, as the donation amount, was unlawful.

Therefore, Article 9 (1) (main sentence) of the above Act provides that the value of the inherited property shall be calculated based on the current status as at the time of the commencement of inheritance tax, and the value of the inherited property omitted from the return shall be appraised, notwithstanding the provisions of paragraph (1). Paragraph (4) of the same Article provides that the value of the inherited property falling under one of the following subparagraphs shall be appraised as at the time of the imposition of inheritance tax, and Paragraph (1) or paragraph (2) of the above Article 80 shall be calculated based on 00, 70, 70, 70, 70, 70, 70, 700, 70, 70, 700, 70, 70, 700, 70, 70, 700, 60, 700, 70, 60, 70, 106, 60, 60, 70, 60, 106, 300, 7, 7, 7, 6, etc.

On the other hand, among the above arguments by the plaintiff, the argument that the market price of 18,621,640 won at the time of the donation as of the date of donation of the real estate of this case should be calculated with the donation price of 18,621,640 won as of the date of donation of this case. According to the appraiser's appraisal, the fact that the market price at the time of the donation of this case is 18,621,640 can be acknowledged. However, the above argument is not accepted, since the maximum amount of the secured claim of this case recognized as above is less than 22,562,195 won and it cannot be viewed as the donation price. Since the above joint collateral mortgage established on the real estate of this case was already cancelled at the time of imposition of the gift tax of this case, the maximum amount of the claim can not be considered as the donation price of this case, and therefore, the issue of whether the property at the time of donation of this case or the property on which the mortgage was established should be determined as of the date of donation.

Therefore, the Plaintiff’s claim of this case is reasonable within the scope of seeking revocation of the portion exceeding KRW 5,427,678, and the defense tax amount exceeding KRW 986,851 among the instant taxation disposition. The remainder of the claim is dismissed as it is without merit. It is so decided as per Disposition by applying Article 8 of the Administrative Litigation Act and the proviso of Article 89 and Article 92 of the Civil Procedure Act.

Judges Choi Han-ro (Presiding Judge)