Article 5 (8) of the Enforcement Decree of the former Inheritance Tax Act (Invalidity)

Article 5 (8) of the former Enforcement Decree of the Inheritance Tax Act (amended by the Inheritance Tax and Gift Tax Act No. 15193 of Dec. 30, 1996) which provides that the value of land shall be calculated based on the immediately preceding individual land price if a donation was made before the public notice of the new individual land price, and even if the individual land price close to the market price at the time of donation was revealed after the donation, it shall not be calculated based on the land price. Article 5 (8) of the former Enforcement Decree of the Inheritance Tax Act (amended by the Inheritance Tax and Gift Tax Act No. 15193 of Dec. 30, 1996) provides that the value of the donated land shall be calculated by setting a specific scope under the market price principle under Article 9 (2) of the former Inheritance Tax Act (amended by the Inheritance Tax and Gift Tax Act

Article 9(2) and (3) of the former Inheritance Tax Act (amended by Act No. 5193, Dec. 30, 1996); Article 60(1) and (3) of the current Act; Article 5(8) of the former Enforcement Decree of the Inheritance Tax Act (amended by the Presidential Decree No. 15193, Dec. 30, 1996; see current Article 50(6))

Supreme Court Decision 93Nu16925 delivered on December 7, 1993 (Gong1994Sang, 386), Supreme Court Decision 94Nu14896 delivered on September 10, 1995 (Gong1995Sang, 1650), Supreme Court Decision 96Nu4411 delivered on August 23, 1996 (Gong196Ha, 2917)

Cho Jong-chul (Law Firm Jin Law, Attorney Lee Jong-il, Counsel for the plaintiff-appellant)

The head of Gangnam District Tax Office (Attorney Choi Jong-soo, Counsel for defendant)

1. Of the disposition imposing gift tax amounting to KRW 96,564,200 on the Plaintiff on May 1, 1997, the part exceeding KRW 82,310,90 (gold KRW 14,253,300) shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the whole purport of the pleading in Gap evidence Nos. 1, 6, 7, and 4-1, 2, 5-1 through 4, 5-1, 1-3, 2-1, 2, and 4, and 2-1, 2-4, and 2-3 of Eul evidence No. 2 contrary to the facts of recognition are not trusted in light of the statement of evidence No. 6, and there is no other counter-proof.

A. On May 15, 1996, the Plaintiff donated 4 lots of land listed in the attached sheet for calculation of the value of donated property (hereinafter referred to as "attached sheet") from the non-party's wall, which is the father (hereinafter referred to as the father) on the attached sheet (hereinafter referred to as "land 1 or 4 according to the attached sheet, and the entire land of four parcels of land is "each piece of land"), and completed the registration of ownership transfer for each piece of land under the name of the Plaintiff on the 12th of the same month.

B. On October 29, 1996, the Plaintiff reported gift tax pursuant to Articles 34-7 and 20 of the former Inheritance Tax Act (wholly amended by Act No. 5193, Dec. 30, 1996; hereinafter referred to as the “Act”), and deemed that it is difficult to calculate the market price at the time of donation of each of the above land, and calculated the tax rate of less than KRW 376,14,908 of the former Public Notice of Values and Appraisal of Lands, etc. (amended by Act No. 5108, Dec. 29, 1995; hereinafter the same shall apply) by the former Public Notice of Values and Appraisal, etc. of Lands, etc. (amended by Act No. 5108, Jun. 29, 1996; hereinafter the same shall apply) by 196 individual land price in 196; 370,148,301,360-14, 306, 3060-1, 406.

C. While the Defendant considered that it is difficult to calculate the market price at the time of donation of each of the above lands on May 1, 1997, the value of each of the above lands is calculated as KRW 415,733,900 in accordance with the individual land price in the attached Table in 1995, such as the Defendant’s decision, and the appraisal value column, and calculated as KRW 415,73,90 in accordance with the above method, and determined as KRW 96,564,200 in which the amount of tax to be paid after deducting donated property deduction, tax calculation, and the reported amount of tax is calculated as KRW 20,57,720 in which the Plaintiff voluntarily paid the tax base and tax amount was deducted from KRW 75,986,480 in which the Defendant issued a tax notice on KRW 75,986,480 in which the amount of tax was deducted and extinguished after the Plaintiff filed a return of tax base and tax amount, and thus the tax base and tax amount reported to the Plaintiff was corrected and extinguished.

2. Whether the instant disposition is lawful

A. The parties' assertion

As to the plaintiff's assertion that the disposition of this case was lawful by relevant laws and regulations on the basis of the individual land price of 1995, the plaintiff argues that ① Article 5 (8) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 15193, Dec. 31, 1996; hereinafter referred to as the "Enforcement Decree") which provides the basis for calculating the value of each of the above lands based on the individual land price of 1995 is invalid as a provision contrary to the legislative intent of the mother law adopting the market price principle in the evaluation of donated properties, and ② even if the value of each of the above lands should be assessed based on the individual land price of 1995 for household affairs 195, since the individual land price of 4 land is illegally calculated, the disposition of this case is unlawful.

B. Relevant statutes

According to Articles 34-7 and 9 (1) (main sentence) of the Act, the value of donated property and the value of donated property, which shall be deducted from among the value of donated property, shall be based on the current status as at the time of donation. Paragraph (2) of the same Article shall be based on the current status as at the time of donation, and when it is difficult to calculate the market price, the value of donated property under the current status as at the time of donation under paragraph (1) of the same Article shall be based on the method prescribed by the Presidential Decree in consideration of the type, size, transaction status, etc. of the relevant donated property. According to Articles 42 (1) and 5 (2) 1 (a) of the Enforcement Decree of the Public Notice of Values and Appraisal of Lands and Appraisal of Lands and Appraisal of Lands and Appraisal of Lands, except for the area designated by the Commissioner of the National Tax Service as at the method of appraisal of the donated property under Article 10 of the Public Notice of Values and Appraisal of Lands and Appraisal of Lands, where a donation was made before the new officially assessed individual land price is applied

(c) Markets:

(1) Principle of market value

Article 9(1) and (2) of the Act adopts the market value principle as to the method of calculating the taxable value of the gift tax (Article 60 of the Inheritance Tax and Gift Tax Act) on the basis that the value of the donated property is based on the current status at the time of donation, and that the current status is based on the current market value (Article 60 of the Inheritance Tax and Gift Tax Act). Under the current tax law, the transfer income tax under the current tax law is the standard market value and the actual market value (Articles 96, 97 of the Income Tax Act), the publicly assessed individual land price and the standard market value (Article 8(4) of the Land Excess Profit Tax Act), and the acquisition tax is calculated based on the "the so-called deemed market value based on the calculation method of the basic market value (Article 111(1) and (2) of the Local Tax Act) of the current market value of the gift tax and gift tax."

As long as the Act takes the market price principle with respect to the method of valuation of donated property, in a case where it is difficult to calculate the market price of land which is a donated property, it shall be deemed to be stipulated in the latter part of Article 9(2) of the Act, Article 5(1) and Article 5(2)1(a) of the Enforcement Decree of the Act, which provides that the price shall be calculated based on the publicly assessed individual land price as a supplementary method for calculating the price, and in a case where it is difficult to calculate the market price of the donated property, it shall be deemed to be stipulated in Article 9 of the Act in the purport that the market price principle is followed with respect to the assessment of donated property, and that it shall not be intended to waive the market price principle if it is difficult to calculate the market price.

(2) Whether Article 5(8) of the Enforcement Decree is invalid

The officially assessed individual land price, which is a donated property, is publicly announced as of January 1 of each year (Article 4 of the Public Notice of Values and Appraisal of Lands, etc. Act, Article 5 of the Enforcement Decree of the same Act), and its basic date (see Supreme Court Decision 93Nu16925 delivered on December 7, 193, Supreme Court Decision 96Nu4411 delivered on August 23, 1996). However, since it is necessary to calculate the officially assessed individual land price as of January 1 of each year, the public notice can be made after a considerable period of time has elapsed from the basic date.

Therefore, in a case where a donation was made before the officially assessed individual land price was publicly announced, the officially assessed individual land price of the year concerned, which becomes effective at the time of donation, has not yet been publicly announced. In such a case, when the price should be calculated by a supplementary assessment method based on the publicly assessed individual land price as of December 31, 1990 because of the difficulties in calculating the market price at the time of donation of land, the issue of which time should be determined by the supplementary assessment method under the publicly assessed individual land price, and in applying Article 5(8)(a) of the Enforcement Decree, where a donation was made before a new officially assessed individual land price was publicly announced, the immediately assessed individual land price should be applied (Article 5(2)1(a) of the Enforcement Decree, which provides that the price of the land shall be determined by the publicly announced individual land price of the year concerned (Article 1293 of the Enforcement Decree of the above Act). The same content was deleted by Presidential Decree No. 13196, Dec. 31, 1990; Article 5(3) of the Enforcement Decree of this case.

However, inasmuch as the supplementary assessment method listed in Article 5(2) through (7) of the Enforcement Decree is stipulated in the purport that it would lead to and close to the market price principle as stipulated in the Act, even if the officially assessed individual land price of the year concerned was not publicly announced at the time of donation and then the basic date was publicly announced on January 1 of the same year after the donation, it would be a supplementary assessment in line with the legislative intent to calculate the value of the land based on the officially assessed individual land price of the year concerned adjacent to the market price in the year concerned by properly reflecting the current status of the land at the time of donation rather than the publicly announced individual land price of the previous year at the time of donation, rather than the publicly announced individual land price of the previous year at the time of donation. In this case, in calculating the value of each of the above lands donated on May 15, 1996, the assessment of

Therefore, in a case where a donation was made before a new individual land price was publicly announced, the price of the land shall be calculated based on the immediately preceding individual land price, and even if the price of the land close to the market price at the time of the donation was revealed after the donation, it shall not be calculated based on the land price. Article 5(8) of the Enforcement Decree, which provides that the price of the land shall not be calculated based on the price of the land in excess of the limit delegated by setting a specific scope under the market price principle under Article 9(2) of the Act as the mother corporation, which provides that all citizens shall calculate the price of the land in excess of the limit delegated by the market price principle.

3. The calculation of justifiable taxes; and

Therefore, if the price of each of the above lands is calculated as the price of individual land in 1996, which is the officially assessed individual land price at the time of the donation of this case, and its tax amount is calculated as the price of each of the above lands in 82,310,900, as

4. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the part exceeding the legitimate tax amount among the disposition of this case on the ground of the above recognition is with merit, and it is decided as per the disposition by admitting the remaining argument of the plaintiff without the need to determine the remaining argument (attached

Judge Gangnam-gu (Presiding Judge) shall have a civil interest