Seocho 2010west 1098 ( October 15, 201)

Methods for assessing land where separate buildings independently from apartment houses belong;

In the appraisal of the value of inherited property, the attached building is a separate building independent of the apartment, so it cannot be deemed that the disposition that calculated the value of the land is unlawful without considering the value of the attached building.

2011Guhap14319 Revocation of Disposition of Levying Inheritance Tax

x 4 others

Head of Yongsan Tax Office

August 26, 2011

October 28, 2011

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s disposition of imposition of KRW 936,882,753 in total in attached Form 936,882,753 on December 1, 2009 against the Plaintiffs is revoked.

1. Details of the disposition;

A. The plaintiffs filed a voluntary report on the inheritance tax base and tax amount of KRW 7,989,574,428 calculated on May 7, 2009 based on the inheritance tax base based on the inherited property value of KRW 22,861,249,478, as the deceased deceased on November 8, 2008. Of the inherited property reported by the plaintiffs, the details of calculating the specific inheritance value of KRW 4,623,00,00 in Yongsan-gu Seoul Metropolitan Government 00,000, and KRW 4,623,03,00 in size (total 5,686,00 square meters in size, and the remainder is a third party's share; hereinafter referred to as "land of this case") are as follows.

B. On May 26, 2009, the Plaintiffs submitted a revised return that calculated the total amount of KRW 49,620,127 as the tax amount paid additionally, with the total amount of KRW 8,039,194,555, while the value of the inherited property was omitted.

C. On October 2009, the director of the Seoul Regional Tax Office (hereinafter referred to as the "Investigation Office") asked the Korea Appraisal Board about whether the price of the attached building of this case was reflected in the apartment house price investigation and calculation of the apartment house of this case. On September 30, 2009, the annexed building from the Korea Appraisal Board was registered in the general building ledger rather than the collective building ledger, and was not reflected in the price calculation.

D. In calculating apartment price based on the above reply, the investigating authority excluded the market price of KRW 1,147,669,520 based on the building of this case from the market price calculated according to the following formula. As a result, the inheritance value of the land of this case became KRW 21,206,298,315.

C. As above, the Investigative Agency added the increase in the value of the inherited property of this case, and re-Adjustment of the value of the remaining inherited property, and notified the Defendant of the difference between the value of the inherited property reported by the Plaintiffs and the value of the inherited property according to the tax investigation. Based on this, the Defendant calculated the inheritance tax again and revised the increase in the inheritance tax amounting to KRW 936,882,750 (including additional tax on negligent tax returns 10,154,639, additional tax on negligent tax returns 54,465,246) on December 7, 2009 (hereinafter “disposition of this case”).

D. The Plaintiffs appealed and filed an appeal with the Tax Tribunal on February 8, 2010, but the Tax Tribunal dismissed the Plaintiffs’ claim on April 15, 201.

[Reasons for Recognition] Unsatisfy, Gap's 1, 2 (including a provisional number; hereinafter the same shall apply), 3, 4, Eul's 1 to 4, 9, 11, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) An error in the calculation of land value of the instant case

① As long as the building attached to this case is specified in the title section of the apartment building registry of this case as an appurtenant building, although the building attached to this case is not included in the apartment building registry of this case, and is separately registered in the general building registry of this case, according to Articles 61 and 63 of the Building on Ownership and Management of Condominium Buildings (hereinafter referred to as the "Building Act"), the building attached to this case should be treated as the section for common use of the apartment of this case. ② Even if the value of the building attached to this case was not subject to assessment in calculating the apartment house price of this case, it should be treated as valid as long as the building price of this case is not corrected in accordance with the above procedure pursuant to Article 17(7) of the Public Notice of Values and Appraisal of Real Estate Act and Article 47(1) of the Enforcement Decree of the same Act, so the building of this case cannot affect the disposal of this case, the apartment building of this case should be considered as the value of the inherited property of this case.

2) Even if it is assumed that the portion of the principal tax of the instant disposition is lawful, the Plaintiffs were aware of the publicly announced price by the Ministry of Land, Transport and Maritime Affairs and reported inheritance tax based on this trust, and whether the Ministry of Land, Transport and Maritime Affairs assessed the apartment of this case except for the attached building when calculating the publicly announced price of the apartment of this case was not known at all. Therefore, the part of adding additional tax among the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On December 26, 1986, the apartment building of this case was registered in the aggregate building ledger with the approval of use on December 26, 1986. The apartment building of this case was registered in the above ledger only on the 1st to 10 floors above ground and the 2nd underground floor (construction room, etc.) and the 1st underground floor (public floor), and the building of this case did not contain any description.

2) On January 8, 2002, the head of Yongsan-gu Office, the owner of the apartment building of this case, the representative director of the Gohap, was permitted to extend the building of this case as incidental facilities to the apartment building of this case and obtained approval for use on June 30, 2003. Thereafter, the attached building of this case was registered in the general building ledger separate from the apartment building of this case. Meanwhile, on August 28, 2003, the title section of the apartment building of this case was registered as an appurtenant building (the building of this case was not separately registered).

3) The Yongsan-gu Office has imposed property tax for 2009 on the building attached to the building of this case separate from the apartment of this case.

4) The annexed building of this case is being leased to various foreign embassies, including the United Nations Department of Korean Representation, regardless of the residents of the apartment of this case.

[Reasons for Recognition] Facts without dispute, Gap evidence 3 through 6, Eul evidence 14 to 18, and 20, the purport of the whole pleadings

D. Determination

1) As to whether there was any error in the computation of the land value of the instant case

A) We examine whether the building attached to the building of this case is included in the common area of the apartment of this case and whether the value of the building of this case should be considered when calculating the land value of the building of this case. Under Article 2 subparagraph 4 of the Aggregate Buildings Act, the term "common area of an aggregate building" refers to the building other than the section of exclusive ownership, the accessory to the building not belonging to the section of exclusive ownership, and the attached building designated as the common area by the rules, etc. pursuant to Article 3 (2) and (3) of the Act. Since the building of this case seems not to fall under the common area of Article 3 (2) and (3) of the Aggregate Buildings Act, it is problematic whether the building of this case falls under the section of exclusive ownership other than the section of exclusive ownership, and the accessory to the building not belonging to the section of exclusive ownership (hereinafter referred to as "the common area of structural common area"). To become the section of common use under the structure, it should be offered for the use of the owner of the section of exclusive ownership, and furthermore, it should be dependent to the section of exclusive ownership.

In addition, according to Article 54(2) and (3) of the Aggregate Buildings Act, accessories corresponding to common areas in structure are to be registered in the building ledger. Article 56(1) of the same Act requires a person who constructs a building to file an application for registration with the building ledger within one month. According to Article 60 of the same Act, upon receipt of such application, the competent authority shall decide whether to register the building in the aggregate building ledger by exercising the primary examination right as to whether the relevant building satisfies the requirements as a sectioned building or common area. Meanwhile, according to Articles 56(1) and 55 subparag. 10 of the Registration of Real Estate Act (amended by Act No. 10416, Apr. 12, 201; hereinafter the same), if the indication of the building recorded in the register does not coincide with the building ledger, registration may not be applied unless a change of real estate indication is made, and the relevant registration officer shall reject such application. As such, in cases where the real estate title register and the real estate register are not entered in the register, the superior effect.

B) In light of the following circumstances acknowledged by the aforementioned legal principles and the purport of the entire pleadings, the instant annexed building is a separate building independent of the instant apartment building. Therefore, the instant disposition that calculated the value of the instant land without considering the value of the attached building cannot be deemed unlawful. Therefore, the Plaintiff’s assertion on this part is without merit.

O Since the attached building of this case is provided for the use by the owner of the apartment building of this case or is subordinate to the use of the building of this part of exclusive ownership, it is impossible to become a common part in structure from the beginning.

O The fact that the building attached to the building of this case was recorded in the general building ledger is deemed to have been confirmed by the competent authority that the requirements as common areas are not met, and even if the building is registered as an appurtenant building in the title register of the apartment building of this case, it cannot be deemed to have any effect on the legal nature of the building attached to this case, because it does not coincide with the building ledger, and that the building of this case was recorded in the title register of the apartment building of this case.

Pursuant to Article 61(1) of the Act on the Ownership and Management of Aggregate Buildings, where a competent authority refuses to file an application for registration with a registry office, notwithstanding Article 55(10) of the Registration of Real Estate Act, the applicant may file an application for registration with a registry office. Article 62 of the Registration of Real Estate Act provides that where a registry office deems that an application for registration is well-grounded and registers it, the pertinent purport shall be notified to the pertinent registry office. Article 63 of the same Act provides that where a registry office receives the above notification from a registry office, the pertinent registry office shall register it with a registry office in accordance with the purport of the registration. According to the Act on the Ownership and Management of Aggregate Buildings, the Plaintiff asserts that the matters listed in the title section of the real estate register shall take precedence over the registry office. However, the above provision is merely a provision that a registry office with a primary examination authority with a registry office with a right to examine whether the requirements as a collective building are met can enforce the registration of an aggregate building after recognizing the secondary examination right by an agency and enforcing registration as a registry.

In calculating the publicly announced price of the apartment of this case, since the price of the building attached to this case is not reflected in calculating the inherited property value of the land of this case, it would result in unfairly lowering the Plaintiffs’ inheritance tax burden if the value of the building attached to this case is included in the building value of the apartment of this case.

2) As to the additional tax portion

Under the Corporate Tax Act, the additional tax for underreporting and additional tax for unfaithful payment are a kind of administrative sanctions imposed when a taxpayer corporation is liable to faithfully return a tax base and pay the tax amount in order to ensure the propriety of taxation, and is negligent in fulfilling its obligations to secure it. Such sanctions are not imposed where there is a justifiable reason to believe that it is not unreasonable for a taxpayer to be unaware of his/her obligations due to a conflict of opinion due to a construction of the tax law beyond the scope of simple legal sites or misunderstandings, etc., and where there is a circumstance where it is reasonable to present it, or where it is unreasonable to expect the relevant party to fulfill his/her obligations, etc. (see, e.g., Supreme Court Decision 2002Du666, Aug. 23, 2002).

Since it seems that the plaintiffs knew that the attached building of this case was used as a separate building from the apartment of this case for the purpose of leasing it to a third party, it would have been sufficiently recognizable that the attached building of this case could not be the common use area of the apartment of this case, and in light of the fact that the attached building of this case, such as property tax, has already been treated as separate real estate in tax administration, it seems that the plaintiffs believed that the value of the attached building of this case should be considered in the calculation of the land value of this case is merely a mere legal site or misunderstanding, and therefore, it is difficult to deem that there is any justifiable reason that it is not attributable to the failure to perform its duties. Accordingly, the plaintiffs' assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and it is so decided as per Disposition.