Whether a provision that regards transaction example within three months before or after the base date of appraisal of donated property as the market price violates the Constitution

If the transaction example, etc. is merely an example provision for the market price and the value of other similar property does not fall under the market price reflecting the objective exchange value of the relevant property, it cannot be assessed by the value, and it does not violate the Constitution, such as infringing on the legal predictability of property rights

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

Article 60 (Principles, etc. of Appraisal)

Article 49 (Principles of Appraisal, etc.)

1. All of the plaintiff's claims are dismissed.

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

The defendant's disposition rejecting to correct or reject gift tax against the plaintiff on August 3, 2007 shall be revoked.

1. Details of the disposition;

A. On November 20, 2006, the Plaintiff, the father of the Plaintiff, donated the ○○○-dong 1186, 1186, 403, 403, 83.98 square meters (hereinafter the apartment of this case) from the non-party 1, 2006, the Plaintiff reported the value of donated property of the apartment of this case to KRW 44,00,000,000 at the standard market price of the National Tax Service at the time of donation.

B. Around June 2007, the Defendant: (a) sold to the Plaintiff the instant apartment at KRW 88,000,000,000 for the value of the instant apartment, which is the same location as that of the instant apartment; (b) on December 18, 2006, the Plaintiff filed a revised return of KRW 73,000,000,000, subtracting the said amount from KRW 88,000,000,000, deducting the said amount from KRW 15,000,000; and (c) on June 22, 2007, the Defendant recognized the Plaintiff’s revised return on the value of the property of the instant apartment and determined the gift tax by recognizing the details of the revised return on June 22, 2007.

C. On July 2, 2007, the Plaintiff filed a claim for correction seeking refund of KRW 3,000,050,050, which was paid at the time of the above revised return, and the Defendant rejected the claim on August 3, 2007.

D. The plaintiff appealed and filed an appeal on January 11, 2008 after filing an objection on August 7, 2007, but was dismissed on March 21, 2008.

[Ground of recognition] Facts without dispute, entry of Eul evidence Nos. 1 through 8 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In addition, Article 49(1) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the “Act”) which provides that the time when the liability to pay gift tax is established shall be determined by the “when the property is acquired through donation” is in violation of Article 21 of the Framework Act on National Taxes, and Article 49(1) and (5) of the Enforcement Decree of the said Act also violates the principle of excessive prohibition under the Constitution. Thus, the instant disposition based on the above Enforcement Decree

(b) Related statutes;

Article 60 (Principles, etc. of Appraisal)

Article 49 (Principles of Appraisal, etc.)

C. Determination

In light of the substance over form principle and fair taxation principle, the market price under Article 60(2) of the Act is not limited to the price which is generally recognized as the market price in the event of free trade between many and unspecified persons, and it is not limited to the price which is recognized as the market price in accordance with Presidential Decree, such as the expropriation and public sale price, appraisal price, etc. Thus, each subparagraph of Article 49(1) or (5) of the Enforcement Decree of the Act delegated by the above provision merely an example of representative cases that can be seen as the market price of donated property (see, e.g., Supreme Court Decision 2000Du5098, Aug. 21, 2001). Meanwhile, in light of the substance over form principle and fair taxation principle of no taxation without law, the market price means the objective exchange value formed by the normal trade of the pertinent property (see, e.g., Supreme Court Decision 2004Du2356, Sept. 30, 2005).

Therefore, Article 49(1), (5), and Article 60(2) of the Enforcement Decree of the Act are merely an exceptional provision on the market price stipulated in Article 49(1), (2) of the Act, and if the value of other similar properties does not correspond to the market price reflecting the objective exchange value of the pertinent property, it cannot be assessed according to the value. Thus, the above provision is not in violation of the principle of excessive prohibition under the Constitution, such as infringing on legal stability and predictability of property rights, or it cannot be

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.