Gwangju District Court 2008Guhap2101 ( October 08, 2009)

Whether the provision which regards business example as market price is in violation of the principle of excessive prohibition.

Provisions regarding transaction example within three months before or after the base date of appraisal of donated property at the market price at the time of donation do not violate the principle of excessive prohibition under the Constitution, such as infringement of legal stability and predictability on property rights, and does not violate the Framework Act on National Taxes stipulating the timing of establishment of tax liability.

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

Article 60 of the Inheritance Tax and Gift Tax Act

Article 49 of the Enforcement Decree of the Inheritance and Gift Tax Act

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 shall revoke the disposition rejecting the correction of gift tax against the plaintiff on August 3, 2007.

1. The issues of the instant case and the judgment of the first instance court

The issue of this case is not only in violation of Article 21 of the Framework Act on National Taxes, which provides that "the time when property is acquired by means of donation" under Article 49 (1) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which stipulates that "the time when the liability for payment of gift tax is established shall be the time when property is acquired by donation within three months before or after the base date of the donated property," but also is in violation of the principle of excessive prohibition under the Constitution, and therefore the disposition of this case based on the above Enforcement Decree is illegal." For this, Article 49 (1) and (5) of the Enforcement Decree of the Act is merely an example provision of the market price under Article 60 (2) of the Act, and if the value of other similar property does not fall under the market price reflecting the objective exchange value of the pertinent property, it cannot be assessed on the basis of the value. Thus, the above provision violates the principle of excessive prohibition, such as infringement of legal stability and predictability of property rights, or violates Article 21 of the Framework Act on National Taxes.

2. Quotation and conclusion of the judgment of the first instance;

Therefore, the reason why the court uses this case is the same as the column of the judgment of the court of first instance, and thus, it can be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is with this conclusion, and it is so decided as per Disposition by the plaintiff's appeal.