Evaluation of Value of Gift

The case holding that a disposition imposing gift tax is inappropriate on the grounds that the value of donated property based on the supplementary evaluation method does not exceed the amount of the donated property already paid.

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

1. The imposition of gift tax of the Defendant against the Plaintiff on February 16, 1991, of KRW 5,165,280 and KRW 860,880 shall be revoked. 2. The litigation cost shall be borne by the Defendant.

1. Details of the imposition;

On June 15, 1989, the Seoul District Court (Seoul District Court Decision 82250, Jun. 15, 1989, received a partial transfer registration of shares, the ground for registration of which is the former owner of the property before the Plaintiff, with respect to 14,213 square meters of 161-1 forest land in 0,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000).

2. The legality of a disposition of imposition.

The plaintiff argues that the defendant's disposition of this case imposing gift tax and defense tax is unlawful because the actual cause for the transfer of registration on the share of this case is that it is a substitute payment, or that it is not possible to obtain land transaction permission on the transaction, and the gift, which is a free contract that is not required to obtain land transaction permission on the part of the transfer of registration, is a cause for registration. The defendant's disposition of this case imposing gift tax and defense tax on this case is unlawful. Second, even if it is not so, the plaintiff agreed to cancel the contract on the ground of the above registration and returned to the registration before the disposition of this case is taken, so the defendant's disposition of this case imposing gift tax

In full view of the purport of the pleading at ○○○○○○ testimony (except for the part which is not believed in the front and rear) of No. 2-1 (Report and Payment Statement of Gift Tax) without dispute over establishment, ○○○○○○○’s testimony (excluding the part which is not trusted in the front and rear), the above ○○○ was set at around December 25, 198 as interest rate of KRW 3,00,00 per month, and the due date of repayment on March 25, 1989 and did not repay the principal and interest thereof to the Plaintiff at the expiration of the above agreed to transfer the shares in this case to the Plaintiff on June 4, 199, instead of paying the principal and interest on the above loan at KRW 50,00,000,000 for the above 1-6,000,0000,000 won are located within the land transaction area, but it is difficult to obtain permission for land transaction as a development restriction zone under the Urban Planning Act.

According to the above facts, although it is clear that the cause of the transfer registration in the name of the plaintiff on the share in this case is a payment in kind, the plaintiff has completed the transfer registration on the ground of the above donation with the intention to avoid the restriction on the land transaction permission system, and as long as the plaintiff has made a voluntary report and payment on the gift tax to the defendant, the plaintiff is dissatisfied with the disposition of this case on the tax amount exceeding the originally anticipated tax amount, and the transfer cause of the share in this case is not possible, and thus, the plaintiff's assertion that he was subject to criminal punishment against the plaintiff on the ground of the registration because it cannot be allowed to obtain the land transaction permission, and the transfer cause of the share in this case is a payment in kind, which is a compensation contract, cannot be permitted. Thus, the first point of the plaintiff's principal cannot be accepted, and if the above transfer registration is cancelled on the share in this case, it is not only for the purpose of avoidance or reduction of the gift tax but also for the genuine intent of cancellation of the agreement on the transaction contract in this case.

However, Article 9 (4) of the Inheritance Tax Act, which applies mutatis mutandis with respect to the gift tax pursuant to the provisions of Article 34-5 of the same Act, provides that the value of inherited property falling under any of the following subparagraphs shall be the value of the property assessed pursuant to the Presidential Decree, notwithstanding the provisions of paragraph (1) and the value assessed pursuant to the provisions of paragraph (1) or (2), which is the value of the property where the mortgage or pledge is created, and Article 5-2 of the Enforcement Decree of the same Act provides that the value of the property assessed pursuant to the provisions of Article 9 (4) of the Act refers to the following amount: Provided, That the value of the property where the mortgage is created as 3 is the maximum value of the property where the mortgage or mortgage is established. Thus, it is reasonable to say that the property where the mortgage or mortgage is established on the property itself in accordance with the principle of strict interpretation of the tax law, and therefore, if only the third party's share in the property is a share in the real property and only the share of the property is established, the above provision shall not apply.

Therefore, since the Plaintiff did not report the gift tax within the prescribed period from the date of registration of donation of this case, the Plaintiff is obligated to pay the gift tax calculated according to the larger amount of the value of the donated property at the time of donation under the provisions of Articles 34-5 and 9(2) of the Inheritance Tax Act. Furthermore, there is no dispute between the parties as to the fact that it is difficult to calculate the market value at the time of donation of this case and the gift tax at the time of imposing the gift tax, which is ultimately, before amendment of Article 5(2)1 of the Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 1293, May 1, 1990). According to Article 5(2) of the Addenda, the assessment of the value of the donated property before May 1, 1990, which was later reported within the prescribed period of time of registration of donation of this case, is more likely to be subject to the previous provision of Article 5(1)3 of the Enforcement Decree of the Inheritance Tax Act, but the value of the gift Tax at the time of this case can not be applied to the new provision of the gift Tax Act.

3. Conclusion

Therefore, since the disposition of this case is unlawful, the plaintiff's claim seeking its revocation is justified, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.