2010 reduction-014 ( November 12, 2010)

The acquisition value following the assessment of the market price may be recognized.

In relation to the appraisal and assessment of the land of this case, the market price appraiser selected a standard comparison between the utilization status and surrounding environment, etc. of the land of this case, but it is reasonable to evaluate the appraisal price by taking such point into consideration in the comparison.

2011Gudan4094 Revocation of Disposition of Imposing capital gains tax

UnionA

Head of Seocho Tax Office

July 12, 2013

September 27, 2013

1. The imposition of the capital gains tax for the year 2008 imposed by the Defendant against the Plaintiff on March 9, 2010 shall revoke the part exceeding the KRW OOO.

2. The plaintiff's remaining claims are dismissed.

3. 30% of the costs of lawsuit shall be borne by the Plaintiff, and the remainder 70% shall be borne by the Defendant.

Cheong-gu Office

The defendant's decision that the disposition of imposition of OOO(including additional OOO) of capital gains tax belonging to the year 2008 against the plaintiff on March 9, 2010 is revoked.

1. Details of the disposition;

A. On June 21, 2005, the Plaintiff acquired each land listed in the separate sheet (hereinafter “instant land”) by inheritance from NoB, his father, and transferred it to OOO on December 18, 2008.

B. On February 6, 2009, the Plaintiff filed a report on capital gains tax reduction or exemption pursuant to Article 69 of the Restriction of Special Taxation Act, stating that capital gains tax should be reduced or exempted, since NoB, the father of the instant land 3 through 9, was re-established for at least eight (8) years. However, the Defendant rendered the instant disposition imposing OOB (including OOB) of capital gains tax on the instant land on March 9, 2010, on the ground that it was not recognized that the Plaintiff re-established and re-developed the same, and that it was not recognized.

C. On May 4, 2010, the Plaintiff filed a request for review to the Board of Audit and Inspection, but was dismissed on November 12, 2010.

Facts without dispute over the basis of recognition, entry in Gap2-1, 4-1, 6-1, and 6-3, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

(a) The primary cause of the claim: A self-owned farmland claim for at least eight years;

NoB cultivated the instant land after transferring OB to OO-gun 291 on September 8, 1981, until the death. As such, the instant disposition made on a different premise is unlawful.

(b) Preliminary cause of claim: Calculation of acquisition value based on the market price appraisal;

As of June 21, 2005, the commencement date of inheritance, the average market price of the instant land as of June 21, 2005, shall be calculated by using the acquisition value of the OOO or OOOO, the minimum appraised value of which is the average market price.

3. Whether the disposition is lawful;

A. As to the primary cause of the claim

In order to obtain a reduction or exemption of capital gains tax on self-arable farmland pursuant to Article 69 (1) of the former Restriction of Special Taxation Act (amended by Act No. 10406, Dec. 27, 2010), a taxpayer who claims a reduction or exemption of capital gains tax on the direct cultivation of the transferred land must prove that he/she has cultivated the transferred land, and "direct cultivation" means that a resident is engaged in cultivating crops or growing perennial plants on his/her own land at all times or cultivating or cultivating them with his/her own labor.

According to the statements and images of Nos. 3, 7 through 13, 18, 19 through 26 (including each number, if any) and the testimony of No. CC, the fact that No. 291 and 296-1 were transferred to OO on September 8, 1981, that No. 296-1 and the above OO296-1 was constructed under the name of No. DaD, the grandchildren of NoB, and the fact that No. 296-1 had been established under the name of No. No. 3, 13, 7 through 13, 18, 19 through 26, and that No. 296-6 had been paid a charge. However, there is no other evidence to acknowledge that No. 2 had been directly involved in the registered domicile located in No. 388, Dec. 8, 1981. Therefore, there is no reason for the plaintiff's primary assertion.

B. As to the conjunctive cause of claim

1) Article 162(1)5 of the Enforcement Decree of the Income Tax Act provides that “for assets acquired through inheritance or donation, the date on which the inheritance commences or the date on which the inheritance is received” shall be deemed to be the acquisition value. As above, in cases where gains on transfer on inherited assets are to be calculated based on the actual transaction value, there is no actual transaction value at the time of acquisition, and thus, separate provisions should be established as to the actual transaction value at the time of acquisition. Accordingly, the main sentence of Article 163(9) of the Enforcement Decree of the same Act provides that “in cases of assets inherited or donated, the value appraised under the provisions of Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date on which the inheritance commences or the date of donation shall be deemed to be the actual transaction value disbursed for acquisition” (see,

Meanwhile, Article 60(1) of the Inheritance Tax and Gift Tax Act declares the principle of market price in the appraisal of inherited or donated property under paragraph (1). Paragraph (2) provides for a broad standard that the market price is formed through a general and normal transaction and that it should reflect an objective exchange value appropriately, and delegates specific scope to the Presidential Decree. Each item of Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act delegated by it refers to a representative case that can be seen as the market price of inherited or donated property (see, e.g., Supreme Court Decision 2007Du23200, Jan. 14, 2010). Here, “market price” refers to an objective exchange price formed through a normal transaction, but this refers to a concept that includes the value assessed in an objective and reasonable manner, so if there is no exchange price through a transaction, the appraisal price of a reliable appraisal institution can be seen as the market price, and even if the value is not changed by a retroactive appraisal (see, e.g., Supreme Court Decision 2005Du3664.

2) If we look back to the instant case and add the purport of the entire pleadings as a result of the commission of appraisal by the Korea Appraisal Board to the Korea Appraisal Board, the appraised value of the instant land as of June 21, 2005 is recognized as a cause of OOO. In this case, the reasonable amount of transfer income tax to be paid by the Plaintiff for the transfer of the instant real estate is the amount of OOO as shown in the attached sheet.

3) Meanwhile, the Defendant asserts that when the Korea Appraisal Board selects a comparison standard, it should not adopt the results of the market price assessment by arbitrarily selecting and appraising the standard land price that is not identical to the comparison standard land price adopted at the time of calculating the officially assessed individual land price.

Unless there are special circumstances, a standard for comparison shall take precedence over a specific use area within the urban planning zone, and the actual land category shall take precedence over a real situation outside the urban planning zone. However, in light of the above legal principles, given the characteristics of land category, use, surrounding environment, location, etc., where there are no land, the natural and social conditions should select land identical or most similar to the land subject to appraisal. Even if there are some differences between the standard land area and the land subject to appraisal and the specific use area or surrounding environment, it is difficult to conclude that the selection of the standard land itself is erroneous (see, e.g., Supreme Court Decisions 2006Da64627, Sept. 10, 2009; 2009Da97062, Mar. 25, 2010). However, in light of the above legal principles, the appraiser is determined to accept the appraisal price compared with the above appraisal price of the land in light of the situation or surrounding environment, etc. of the market price.

C. Sub-committee

Therefore, the part exceeding the above OOO of the disposition of this case should be revoked in an unlawful manner.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.