Early High Court Decision 2010Du1452 ( October 27, 2011)

The average value of a certified public appraisal corporation shall be equivalent to the market price.

The concrete package is a accessory to the land used in the instant field, which is not a capital expenditure and has a value different from that of the land, and the average appraisal value of the appraisal corporation shall be the value assessed in an objective and reasonable manner and falls under the market price.

2011Guhap2755 Revocation of Disposition of Revocation of Inheritance Tax Imposition

Lee Dong-A 3 others

Head of the High Tax Office

January 31, 2012

February 14, 2012

1. On February 1, 2010, the Defendant’s disposition of imposing inheritance tax of KRW 000 against the Plaintiffs is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

가. 망 이BB는 생전에 고양시 덕양구 OO동 000 등에서 공병 도매업을 영위하던 자로， 2007.경 같은 동 000 잡종지 2，651㎡， 같은 동 000 잡종지 1，457㎡，같은 동 000 창고용지 330㎡ 합계 3필지(이하 '이 사건 야적장용 토지'라 한다)를 공병 야적장으로 사용하기 위하여 콘크리트 포장(이하 '이 사건 콘크리트 포장'이라 한다)을 하였다.

B. As the networkB died on November 1, 2007, the Plaintiffs, co-inheritors, who were co-inheritors, on April 29, 2008.

The inheritance tax was reported, and among them, ① the kinds of property are other buildings with respect to the concrete packaging of this case, and the value of which is 000 won (excluding the value of the land for the camping site of this case), and ② the value of which is 633 square meters in 00 miscellaneous land of the same 00 miscellaneous land (hereinafter “the land of this case”) was reported as included in the inherited property.

C. ① The Defendant considers the instant concrete packaging as an inherited property separate from the land and thus recognizes the Plaintiff’s reported value of 260,000,000, as it is, and ② the Inheritance Tax and Gift Tax Act (Law No. 9916, Jan. 1, 2010) as it is, regarding the instant land.

On November 1, 2007, the date of commencing the inheritance pursuant to Article 61(1)1 of the Inheritance Tax Act, deeming that it is difficult to calculate the market price pursuant to Article 60(3) of the same Act, the value of the inherited property is calculated with 000 won per square meter (x 633 square meters), which is the publicly assessed individual land price of the instant land as of November 1, 2007, and on February 8, 2010, the aggregate value of the appraised value of other inherited property is determined as 00 won, and the aggregate value of the appraised value of other inherited property is determined as 00 won, and the inheritance tax is imposed upon the plaintiffs (hereinafter referred to as the "original disposition").

D. After that, on February 19, 2010, the Defendant revised the initial disposition to correct the error of calculation of penalty tax in bad faith, and revised the error of calculation of penalty tax in bad faith on March 11, 2010 to KRW 000 of inheritance tax, and revised the error of calculation of penalty tax in bad faith on March 11, 2010 to KRW 00 of inheritance tax; and on May 14, 2010, partly corrected the error of the value of inherited property to KRW 000 (hereinafter “instant disposition”).

[Grounds for Recognition] The facts without dispute, Gap evidence 1 2 through 5, Eul evidence 1 to 3, Gap evidence 5 1, 2, Gap evidence 6, and 10, Eul evidence 1, 2, and 3 Eul evidence 2, and Eul evidence 3 1, 2, and 4 evidence 4-2, and the whole purport of the pleadings,

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs asserted that the defendant's disposition of this case should be revoked because it is unlawful for the following reasons.

(1) Although the concrete packaging of this case is merely a concrete packaging facility constructed on the land in flat work to use the land for the field site of the disease, and it is not a structure having property value separate from the land, but a capital expenditure for the land, the defendant calculated the value of the inherited property by deeming the concrete packaging of this case as a structure separate from the land as an inherited property.

(2) Article 61(1)1 of the Inheritance Tax Act is merely a supplementary assessment method applicable to cases where it is difficult to calculate the market price as of the date of commencing the inheritance. As such, in the case of the land in this case, the appraisal price that the Defendant requested a retroactive appraisal from two appraisal institutions (ship companies, appraisal corporations, and Korean Appraisal Board) in the pre-assessment review is recognized as the market price, and based on this, the acquisition price of the land in this case should be calculated based on the officially assessed individual land price, the Defendant calculated the inherited property value of the land in this case based on

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) As to the Plaintiff’s first assertion (the concrete packaging part of this case)

Article 61 (6) of the Inheritance Tax Act also includes "other facilities and structures" as inherited property, and it does not include what kind of "construction" is stipulated in the law, but it should be a structure and form other than buildings fixed on the land in order to constitute a structure, which physically separate from land and have independent economic value (see, e.g., Supreme Court Decision 2004Du13844, Jul. 28, 2006). The following circumstances, which are acknowledged by considering the whole arguments between Gap and Eul evidence No. 8, and Eul evidence No. 9, as a whole, the concrete packaging of this case is merely a packaging facility installed in the form of a bottled land to be used as a bottled land, and the concrete packaging of this case does not physically separate the land and its form from the land attached to this case, and thus, it cannot be seen that the concrete packaging and concrete packaging of this case can only increase the value of the land of this case. Therefore, the concrete packaging of this case can not be seen as an independent value of the land of this case.

(2) As to the plaintiff's second assertion (the part of the land of this case)

According to the main sentence of Article 60 (1) of the Inheritance Tax and Gift Tax Act, the market value of the property assessed by the plaintiff is high, based on the market value as of the date of commencing the inheritance or donation, and Article 60 (2) of the Inheritance Tax and Gift Tax Act provides that "the market value under the provisions of paragraph (1) is ordinarily established when transactions are freely conducted between many and unspecified persons, and the market value is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as the expropriation and public sale price and appraisal price," and the provision of Article 60 (2) of the Inheritance Tax and Gift Tax Act provides that the market value of the above land is not limited to the market value under the conditions as prescribed by the Presidential Decree, and it is difficult for the defendant to calculate the market value of the above 20th appraisal method, which includes the market value of the above 20th appraisal method before and after the commencement of the inheritance tax and gift Tax Act, and the appraisal method of the 20th appraisal method of each of the above 20th appraisal methods.

(3) Sub-determination

Furthermore, among the value of the inherited property of this case, the above concrete packaging value of this case is deducted, and when the inheritance tax amount is calculated by reflecting the average appraisal value, not the publicly assessed individual land price, the fact that the value of the land of this case is calculated as KRW 000, not the publicly assessed individual land price, does not have any dispute between the parties, and the defendant's disposal of this case exceeds

3. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition.