Seoul High Court Decision 201Da4331

If the market price of inherited property has been proved by retroactive appraisal value, it is reasonable to view it as the acquisition price of transferred property.

Even if the value of inherited property was assessed as a publicly assessed individual land price, if the market price of inherited property is proved by the retroactive appraisal price, the acquisition price of the transferred asset value shall be calculated according to the market price.

Article 96 of the Income Tax Act

2014Guhap23179 Disposition of revocation of refusal to correct capital gains tax

AA

○ Head of tax office

October 15, 2015

October 29, 2015

1. The Defendant’s rejection of correction of KRW 00,000 for the transfer income tax of KRW 00,000 for the year 2014 against the Plaintiff on June 25, 2014 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. BB, the owner of ○○○○○○○○○-dong 00-0 large 000 square meters (hereinafter referred to as “instant land”) and the lower underground floor, the third floor above the ground, and the third floor above the instant building (hereinafter referred to as “instant building”); and BBB died on February 8, 2013; and thereafter, on March 8, 2013, the Plaintiff, a son of BB, completed the registration of ownership transfer on each of the instant real estate on the ground of testamentary gift on February 8, 2013.

B. After February 21, 2014, the Plaintiff sold each of the instant real estate to CCC at KRW 000,000,000,000. On the same day, CCC completed the registration of ownership transfer based on the said sale of each of the instant real estate.

C. On April 30, 2014, the Plaintiff: (a) filed a preliminary return on KRW 00,000,000 as to the transfer value of each real estate of this case with the acquisition value of KRW 000,000; and (b) paid the said transfer income tax on KRW 00,000,000 as a result of the transfer of each real estate of this case (hereinafter “the instant preliminary return”); and (c) paid the said transfer income tax.

D. After May 16, 2014, the Plaintiff requested an appraisal of each of the instant real estate to the △ Appraisal Corporation (hereinafter referred to as the “△△ Appraisal Corporation”), and the standard place of comparison is 00,000 square meters (hereinafter referred to as “00-00 land”), and the standard place of reference is 8, 2013, the value of the instant land was assessed as KRW 00,000,000. On the other hand, the △ Appraisal was assessed as KRW 00,000,000 on the instant building, which had been already removed at the time of the said appraisal, by estimating the ordinary state at the time of the said standard place of appraisal. On May 26, 2014, the said value was assessed as KRW 00,000,000, and on May 26, 2014.

E. On June 3, 2014, based on the above appraised value, the Plaintiff: (a) deemed the Defendant as a total of KRW 000,000,000 (=a total of KRW 000,000 of the instant land + the instant building KRW 00,000,000) as the acquisition value of each of the instant real estate; and (b) requested the Defendant to rectify capital gains tax from the transfer of each of the instant real estate at KRW 00,000 by determining the tax base as the acquisition value of each of the instant real estate; (c) however, on June 25, 2014, the Defendant issued a disposition rejecting the Plaintiff’s claim for correction (hereinafter “instant disposition”).

F. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on August 29, 2014, but the decision of dismissal was rendered on November 25, 2014. The Plaintiff filed the instant lawsuit on December 23, 2014.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In calculating the tax base of capital gains tax for the transfer of each of the instant real estate, the Plaintiff applied KRW 00,000,000, which is an amount calculated based on the officially assessed individual land price, etc. under Articles 60(3) and 61(1) of the Inheritance Tax and Gift Tax Act, as the acquisition price of each of the instant real estate (applicable to necessary expenses to be deducted from the transfer price when calculating the gains from the transfer), and reported and paid KRW 00,000,000, which is calculated based thereon. However, as long as the market price of each of the instant real estate is proven, the transfer income tax for the Plaintiff should be revised on the ground that the market price is much less than the market price of each of the instant real estate, and as long as the market price of each of the instant real estate is proven, the acquisition price of each of the instant real estate is included in the “market price” of a reliable appraisal institution, and the average acquisition price of each of the instant real estate is 00,000,000,00 won average market price of each of the instant real estate.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the market price of each real estate of this case

A) Article 95(1) of the Income Tax Act provides that "the amount of capital gains shall be the amount calculated by deducting necessary expenses under Article 97 from the total amount of capital gains under Article 94 (hereinafter referred to as "transfer value") and subtracting the special long-term holding deduction from such amount (hereinafter referred to as "transfer marginal profits"). The main sentence of Article 97(1)1(a) provides that "the actual transaction value for the acquisition of assets under each subparagraph of Article 94(1)" with respect to one of the necessary expenses to be deducted from the transfer value in calculating transfer marginal profits, and the main sentence of Article 163(9) of the Enforcement Decree of the Income Tax Act provides that "in the application of the main sentence of Article 97(1)1(a) of the Act to the assets received by inheritance or donation (excluding donations under Articles 33 through 42 of the Inheritance Tax and Gift Tax Act), the value appraised at the time of acquisition under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of commencing the inheritance or donation".

Meanwhile, Article 60 (1) of the Inheritance Tax and Gift Tax Act (hereinafter "the Inheritance Tax and Gift Tax Act") provides that "the value of the property on which the inheritance tax or gift tax is levied shall be based on the market price as of the date of commencing the inheritance or the date of donation (hereinafter "date of appraisal")." Article 60 (2) provides that "the market price shall be the normal price if the property is freely traded between many and unspecified persons, and shall include the amount which is recognized as the market price as prescribed by Presidential Decree, such as the expropriation, public sale price, and appraisal price." Article 49 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the amount recognized as the market price under conditions prescribed by Presidential Decree, such as the expropriation, expropriation, auction price, and appraisal price, etc." Article 60 (2) of the Act provides that "if there is a sale, expropriation, auction or public sale within six months before and after the date of appraisal (three months in the case of donated property), it refers to the amount confirmed as follows."

As above, Article 60 of the Inheritance Tax and Gift Tax Act declares the principle of market value in the evaluation of inherited or donated property under paragraph (1). Paragraph (2) of the same Article, on the premise that the market value is formed through a general and normal transaction, and an objective exchange value should be reflected in an adequate manner, and delegates specific scope to the Presidential Decree by presenting the approximate standard, which can be recognized as the market value. The provision of the appraisal value, etc. of the "relevant property" subject to taxation under each subparagraph of Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which is delegated by the said authority, as the market value, is a representative case where it can be seen as the market value of inherited or donated property (see, e.g., Supreme Court Decisions 2008Du6448, Jan. 14, 2010; 2013Du13723, Dec. 12,

In addition, even if the tax authority assessed the acquisition value of assets as a publicly assessed individual land price for the reason that it is difficult to assess the market price at the time of inheritance of assets, and assessed the acquisition value of assets as a publicly assessed individual land price for the reason that it is difficult at the time of inheritance of assets, if the market price at the time of inheritance is verified by the time of the closing of argument in the lawsuit seeking revocation of the said taxation, it should be determined on the basis of the market price, and whether the amount of the tax imposed is exceeding the reasonable tax amount. Here, “market price” refers to the objective exchange price formed through normal transactions in principle, but it is a concept that includes the value assessed in an objective and reasonable manner, so if there is no exchange price through transactions, the appraisal price at a reliable appraisal institution may be deemed as “market price,” and even if the value is not changed by retroactive appraisal (see, e.g.

B) However, on March 8, 2013, the Plaintiff, the Plaintiff of the network BB, sold each of the instant real estate in KRW 00 million to CCC on February 21, 2014, for which one year has not yet passed since the registration of ownership transfer was completed due to legacy on February 8, 2013, and at the Plaintiff’s request, the value of each of the instant real estate was assessed as KRW 00,000,000 at the time of March 8, 2013, and the value of the instant land was assessed as KRW 00,000,00 on the instant building in the condition that it was already removed at that time, based on the presumption of the ordinary status at that time as of the said point of time as of March 8, 2013 and evaluated that the value was assessed as KRW 00,000,000.

그리고 갑 제6호증의 기재 및 이 법원의 감정인 CCC에 대한 감정촉탁결과에 의하면, 2010년부터 2014년까지 이 사건 토지의 개별공시지가는 아래 표의 기재와 같은 사실, 이 법원의 감정촉탁을 받은 주식회사 ■■■감정평가법인(이하 '■■■감정'이라 한다) 소속의 감정평가사 CCC는 비교표준지를 □□감정과 마찬가지로 000-00토지로 하고 기준시점을 유증의 효력발생일(BBB의 사망일)인 2013. 2. 8.로 하여 이 사건 토지의 가액을 000,000,000원으로 평가하였고, 이미 철거된 상태인 이 사건 건물에 대해서는 □□감정평가법인의 감정결과를 참조하여 그 가액을 00,000,000원으로 평가한 사실이 인정된다.

다) 위 법리와 인정사실을 기초로 하여 이 사건을 살피건대, 앞서 인정한 바 있거나 앞서 든 증거들 및 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정들, 즉 ① 원고가 피고에게 경정청구를 하기 위해 의뢰한 □□감정의 이 사건 토지에 대한 감정평가액과 이 법원 감정인(■■■감정)의 이 사건 토지에 대한 감정평가액은 모두 공신력 있는 감정기관이 평가한 결과로서 □□감정과 이 법원 감정인 모두 관계 법령에서 들고 있는 가격산정 요인들을 구체적・종합적으로 참작하여 그 각 요인들이 빠짐없이 반영된 적정가격을 산출한 것으로 보이는 점, ② 위 각 감정평가 내용은 비교표준지 선정, 기준시점, 시점수정, 지역요인 비교치, 개별요인 비교치, 그 밖의 요인 보정치가 같거나 유사하며 그 감정평가 결과 또한 거의 유사한 점(아래 표4. 참조), ③ 2010년부터 2014년까지 이 사건 토지의 개별공시지가 증가폭이 그다지 크지 않은 점, ④ 원고가 2014. 2. 21. 이 사건 부동산(이 사건 토지 포함)을 매도한 가격은 0억 0,000만 원으로서 위 두 감정평가의 기준시점부터 위 매매시점까지 약 1년 동안의 지가상승 및 이 사건 부동산의 가액이 포함된 점을 감안할 때 위 두 감정평가액 모두 실제 매매가격에 근접하는 것으로 보이는 점, ⑤ 상속세및증여세법 시행령 제49조 제1항 제2호도 2 이상의 공신력 있는 감정기관이 평가한 감정가액이 있는 경우 그 감정가액의 평균액을 상속재산의 시가로 볼 수 있는 대표적인 경우의 하나로 예시하고 있는 점 등을 종합적으로 고려해 보면, 위 두 감정평가액의 평균값인 000,000,000원 〔= (000,000,000원 +000,000,000원) ÷ 2〕 이 이 사건 토지의 시가를 가장 적절하게 반영한다고 봄이 타당하다.

D) However, for the building of this case, the value of the building of this case was assessed as KRW 00,00,000, and the appraiser of this court assessed as KRW 00,000,000 by referring to the appraisal result of the △ Appraisal Corporation. However, as seen above, since the building of this case was already demolished at the time of each of the above appraisal, the above two appraisal values are merely based on the presumption on the current status of the building at the time of the base point of time, and it is difficult to view that the market price of the building of this case is properly reflected.

2) Whether the instant disposition is lawful

As examined in the above 1), the market price of the land of this case shall be KRW 00,00,000, and in calculating the transfer income tax following the transfer of each real estate of this case, the tax base and tax amount of the transfer income tax originally reported and paid by the plaintiff shall exceed KRW 000,000,000,000, as it exceeds the legitimate tax base and tax amount of the transfer income tax reflecting the market price of each real estate of this case, among the acquisition price of each real estate of this case as necessary expenses to be deducted from the transfer value under Article 97 (1) 1 (a) of the Income Tax Act, Article 163 (9) of the Enforcement Decree of the Income Tax Act, and Article 60 (1) and (2) of the Inheritance Tax and Gift Tax Act.

Therefore, the plaintiff's request for correction to correct the transfer income tax after reducing the market price of each real estate of this case is justifiable, and the defendant's disposition rejecting the above request for correction is illegal.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.