Incheon District Court 2010Guhap1600 ( August 26, 2010)

early 2010 Heavy0550 (2010.04.07)

Public roads can not be included in the value of inherited property because it is difficult to recognize substantial property value.

Although land used by many unspecified persons as public roads, it cannot be readily concluded that there was property value solely on the ground that individual officially announced values are publicly announced, and in light of all the circumstances, a disposition imposed by including the value of inherited property in the value of inherited property is unlawful.

2010Nu29125 Revocation of Disposition of Imposing Inheritance Tax

IsaA

○ Head of tax office

Incheon District Court Decision 2010Guhap1600 Decided August 26, 2010

March 31, 201

April 28, 2011

1. Revocation of a judgment of the first instance;

2. The disposition of imposition of inheritance tax of KRW 91,424,990 against the Plaintiff on December 1, 2009 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On June 23, 2008, the Plaintiff inherited the Plaintiff’s share of 1664/190 of each of 37-31 square meters and 766 square meters of ○○○○○-dong, 37-13, and 37-31, and 166 square meters of the same 37-31 road (hereinafter “instant land”).

B. The Plaintiff reported and paid inheritance tax by calculating the appraised value of the instant land as zero (0) on the ground that it is used as a public road. The Defendant calculated the appraised value of the instant land as of June 23, 2008, which was the date of commencing the inheritance, and additionally imposed KRW 91,424,990 on the Plaintiff on December 1, 2009 (hereinafter “instant tax disposition”).

C. The instant land is included not only in the land category but also in the part of the secondary road packed for actual purposes. Accordingly, there is no fact that the Plaintiff actually used and profited from the instant land as well as the network EA, and considering this, the Defendant did not impose property tax on the instant land after the Plaintiff owned the instant land.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Gap evidence Nos. 6-1 through 3, Eul evidence Nos. 6-1, Eul evidence Nos. 7 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

At the time of the commencement of the instant disposition, the Plaintiff was used as a public road, and the Plaintiff was not able to use and profit from the said land, and the Defendant also did not impose property tax, etc. in consideration of this point. Under the substance over form principle, the instant land should be assessed as follows: (i) the value of the instant land should be assessed as above; (ii) the Defendant assessed the value of the instant land at the above value and assessed the inheritance tax after including it in the value of the inherited property; and (iii) the instant disposition was unlawful.

(2) The defendant's assertion

On June 23, 2008, which was the commencement date of the inheritance of the instant land, on January 18, 2008, a prior to ○○○○○-dong 104, 108,187 square meters including the instant land, a public inspection was made and a public announcement was made to request the designation of an urban development zone for the instant area under ○○-gu ○○-gu ○○○-gu ○○○-gu ○○○-si 2008-58. On December 1, 2008, a decision was made and a topographic map was made on December 1, 2008, under ○○ Urban Management Planning (Designation of an urban development zone and the establishment of a development plan for the instant urban development project) under Article 208-283 of the Notice of ○ City ○○-gu ○○-gu ○○-gu ○○-gu ○○-gu ○○-gu ○○-gu ○.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Relevant legal principles

Article 60 (1) of the Inheritance Tax and Gift Tax Act provides that "the value of the property on which the inheritance tax or gift tax is levied under this Act shall be the market price as of the date of commencing the inheritance or the date of donation (hereinafter referred to as the "date of appraisal"), and Article 60 (3) of the Inheritance Tax and Gift Tax Act provides that "in the application of the provisions of paragraph (1), where it is difficult to calculate the market price in the application of the provisions of paragraph (1), the value assessed by the methods prescribed in Articles 61 through 65 shall be based on the consideration of the type, size, transaction circumstances, etc. of the property in question, and Article 61 of the Inheritance Tax and Gift Tax Act provides that where it is difficult to calculate the market price in the case of land, it shall be assessed by the publicly assessed individual land price pursuant to the "Public Notice of Values and Appraisal of Movable Property Act" according to the supplementary assessment method.

However, in relation to de facto roads, Supreme Court Decision 98Du8360 Decided September 3, 199 provides that "The value of inherited property shall be based on the current status at the time of commencement of inheritance in principle," Article 9 of the former Inheritance Tax Act and Article 5 (1) of the former Enforcement Decree of the Inheritance Tax Act provides that the value of inherited property shall be based on the current status at the time of commencement of inheritance. However, general rules 44. ·9 of the Inheritance Tax Act provide that, although a large number of unspecified public roads are included in inherited property, but the value of appraisal shall be zero, except where there is property value, such as the confirmation of the market value at the time of commencement of inheritance by compensation price, etc., if inherited property is actually provided to a large number of unspecified persons at the time of commencement of inheritance, regardless of its land category in the public record, it cannot be deemed that there is property value at the time of commencement of inheritance, and thus, it can be recognized that it is reasonable to impose inheritance tax on inherited property at the time of commencement of inheritance.

(2) Organization of issues

According to such legal principles, the value of the property on which inheritance tax is imposed shall be calculated as the market value as of the date of commencing the inheritance in the case of a road commonly used by many unspecified persons, such as the land in this case, and the general rules 61-50, 4 (Road Assessment, etc.) of the Inheritance Tax and Gift Tax Act provides that the appraised value shall be deemed zero, except where the appraised value is recognized as having no property value, such as there is no compensation value, if it is impossible to use it for any purpose other than on the road as of the base date of appraisal, etc., such appraised value shall be deemed zero, except where the market value on the date of commencing the inheritance is confirmed by the compensation price, etc.

Therefore, the key issue of this case is whether the land in this case constitutes "the exceptional case where the market price at the time of commencement of the inheritance is confirmed by compensation price, etc." and it is reasonable to deem that the tax authority has the burden of proving it.

(3) Facts recognized

(A) The instant land is designated as the area subject to Class 1 district unit planning zone, urban development zone, and land transaction contract, and ○○ Metropolitan City Mayor continued to calculate and publicly notify the officially announced land value of the instant land from 2003 to 2008 as follows.

(B) On January 18, 2008, 00 ○○○-dong, 104 ○○-dong, 104 298,187 m2,000, including the instant land, was a public announcement to request the designation of an urban development zone for the ○○-dong, ○○-dong, 00 m298,187 m2,000. On February 18, 2008, the public announcement was made on February 18, 2008, the public announcement was made on the public announcement of the residents’ opinion hearing to designate an area where building permission was restricted in the urban development zone. Accordingly, on March 17, 2008, ○-204 m208-244.

(C) On December 1, 2008, 2008, ○○○○-dong 104,000 298,187 m2,000 m2,000,000 m2,000,000 m208,000 m2,000 m2,000,000 m2,000,000

(D) On September 23, 2009, the Housing Zone Urban Development Business Association was established and approved to establish the association on September 23, 2009, where ○○○ Urban Management Plan (the designation of a rooftop zone urban development zone and the establishment of a development plan) and the notification of topographic drawings was made on October 9, 2009.

(E) On June 8, 2010, an urban development project association requested the ○ Metropolitan City to designate a zone (a modification) and a development plan (a modification). On October 18, 2010, the ○○ Metropolitan City made a request for the designation of a zone (a modification) to an urban development project association of a rooftop zone (a modification) and a supplementary notification to supplement a development plan (a modification), thereby examining a supplementary project.

(F) According to the Urban Development Act, an urban development project is implemented to create a complex or city with functions such as residence, commerce, industry, distribution, information, communication, ecology, culture, health, welfare, etc. in an urban development zone in the order of ① designation of an urban development zone (Article 3 of the Urban Development Act), ② formulation of an urban development plan (Article 4 of the Urban Development Act), ③ public announcement of designation of an urban development zone (Article 9 of the Urban Development Act), ④ designation of an implementer such as an urban development cooperative (Article 11 of the Urban Development Act), ⑤ authorization for establishment of an urban development cooperative (Article 13 of the Urban Development Act), ⑤ preparation of an implementation plan and authorization for an implementation plan (Article 17 of the Urban Development Act), ③ announcement of an implementation plan (Article 18 of the Urban Development Act), and (Article 19 of the Urban Development Act). In addition, the Urban Development Act provides for the cancellation of designation of an urban development zone as follows.

"(1) The designation of an urban development zone shall be deemed cancelled on the day following the date specified in any of the following subparagraphs:

1. Where an implementation plan under Article 17 is not applied for within three years from the date on which the urban development zone is designated and published, the third anniversary thereof;

(2) Notwithstanding paragraph (1), where a development plan is formulated after designating an urban development zone pursuant to the proviso to Article 4 (1), the designation of the urban development zone shall be deemed revoked on the day following any of the following dates:

1.If no development plan is formulated and published by the second anniversary of the date on which the urban development zone is designated and published, the second anniversary thereof.

2. Where no application is filed for authorization of an implementation plan pursuant to Article 17 within three years from the date on which the development plan is formulated and publicly announced, the third anniversary thereof;

(3) Where the designation of an urban development zone is deemed cancelled pursuant to paragraph (1) or (2), a specific-use area and a district-unit planning zone under the National Land Planning and Utilization Act for such zone shall be deemed reinstated to a specific-use area and a district-unit planning zone respectively before the designation of the relevant urban

[Ground] Facts without dispute, Gap evidence 1, Eul evidence 2 through 5-1, Gap evidence 6-1 through 5, Gap evidence 8, Eul evidence 2-4, Eul evidence 5-1 through 8, Eul evidence 6-1, 2, Eul evidence 6-2, Eul evidence 8, Eul evidence 9-1, and Eul evidence 9-2. The purport of the whole pleadings is as follows:

(4) Review of related precedents

(A) Supreme Court Decision 98Du8360 delivered on September 3, 199 and Seoul High Court Decision 97Gu13223 delivered on April 3, 1998

(1) Grounds for the Seoul High Court Decision 97Gu1323 delivered on April 3, 1998

The land of this case is classified as a whole or site, but in substance, it is a narrow sloping road accumulated as a site of several parcels of a house and actually used as a road by residents from the previous to the present. The above deceased or the plaintiffs did not collect usage fees for the above land from neighboring residents of the above land. In addition, in light of the shape of the above land or the utilization status from the previous land, it can be acknowledged that it is impossible for the plaintiffs to exclusively use the land by restricting the passage of neighboring residents or request the usage fees, or use them for any purpose other than for the road, and there is no counter-proof, so the above land should be evaluated as zero unless there is a special reason that the market price at the time of the commencement of the inheritance is confirmed by the compensation price, etc., and there is no special reason that the above land has property value.

In regard to this, the defendant asserts that the land described in the 1st among the land in this case is incorporated into the Do road, the Do road, and the Do road expansion section, and the compensation is expected to be paid. The land described in the 2nd is possible to compensate for the land in the future because part of the land is in conflict with the urban planning facilities. The land described in the 3rd may be used as the site by constructing a new building by combining the previous land with the 238-18th-18th-2 of the same Act, which is the neighboring land where the previous ground building is destroyed, and the land described in the 4th above is actually used as the site by constructing a multi-household building by combining the former building site with the neighboring land of 239-1 of the same Act, which is the neighboring land where the previous ground building is destroyed, and the 5th and 6th land is

Therefore, it can be recognized that the land listed in one of the instant land is the land that was planned to be paid the compensation (However, the amount of the compensation is not determined at the time of commencement of the inheritance) in 196 by being incorporated into the Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do.

However, in light of the remaining lands other than the above land, the fact that part of the land indicated in the CD2 conflicts with the urban planning facilities (road), but even if the part of the above land is able to compensate for the part to be incorporated when the urban planning projects are implemented in the future as a conflict with the urban planning facilities, such circumstance alone cannot be readily concluded that the above land had property value at the time of the commencement of the inheritance. (Interim omitted) It is recognized that the land above 5 and 6 were designated as a parking lot improvement zone, but such circumstance alone does not necessarily mean that the above 5 and 6 land had property value at the time of the commencement of the inheritance, and there is no other assertion or proof that the above 2, 3, 4, 5, and 6 were real property value at the time of the commencement of the inheritance.

(2) Grounds for the Supreme Court Decision 98Du8360 Delivered on September 3, 199

The court below's holding that the land Nos. 2 through 6 of the decision of the court below should be evaluated as the market price (0) at the time of commencement of inheritance because the market price at the time of commencement of inheritance is not confirmed by compensation price, etc., is reasonable in light of the above legal principles, and there is no error of law in the misapprehension of legal principles as to the appraisal of the value of the above land as otherwise alleged in

(B) Supreme Court Decision 93Nu6249 delivered on August 27, 1993, Daejeon High Court Decision 92Gu525 delivered on January 29, 1993

(1) Grounds for the Daejeon High Court Decision 92Gu525 delivered on January 29, 1993

In this case, it cannot be seen that there was a legal obstacle in exercising the ownership of the land in this case at the time of the commencement of the inheritance, on the sole basis that the land in this case was provided for the passage of neighboring residents, etc., on the land in 696 square meters and 398 square meters (hereinafter referred to as the "land in this case"), among the land 266-35 square meters of the same 266-35 square meters of the same Act (hereinafter referred to as the "land in this case"), even though it is recognized that the neighboring residents, etc. have long been formed, and that the land in this case was confirmed to have been transferred to the road, or that the competent administrative agency has decided to compensate for the land in this case. Therefore, it cannot be viewed that there was no property value solely on the ground that the land in this case is provided for the passage of neighboring residents, etc.

(2) Grounds for the Supreme Court Decision 93Nu6249 Delivered on August 27, 1993

The instant land is a de facto road that has been provided to many and unspecified residents for their passage since much more than the predecessor acquired, and the competent administrative agency does not have any compensation. Considering the shape of the road, it seems that the inheritor is practically impossible to use the land exclusively by restricting the passage of neighboring residents, demanding the use fee, or using it for other purposes than the road. Thus, it is difficult to say that the instant land has property value at the time of commencement of the inheritance. Although the land category of the instant land is or before the public register or is incorporated into the road under the Road Act, etc., there is no legal obstacle to the exercise of ownership, or it does not change because the Plaintiffs reported part of the instant land as inherited property. Ultimately, the lower court erred by misapprehending the legal doctrine on the value of the inherited property of the de facto road that is commonly used by many and unspecified persons.

(5) Determination

On June 23, 2008, which was at the time of commencing the inheritance (date of appraisal), the instant land was in the state of public inspection and announcement for the designation of the apartment zone development zone by ○○ Metropolitan City ○○-gu ○○-gu ○008-58, and thereafter on December 1 of the same year, the said land was in the state of the determination of the ○○ Urban Management Planning (designation of an Urban Development Zone and Establishment of a Development Plan) and the announcement of topographic drawings under Article 208-283 of the notification of the ○○ Metropolitan City ○○○ Metropolitan City ○○, which was at the

In full view of the review of the foregoing facts and related precedents, the instant land was in the state of public inspection and announcement to request the designation of an urban development zone in the ○○ Metropolitan City ○○○-gu on June 23, 2008, which was at the time of commencing the inheritance (date of appraisal). As such, such public inspection and announcement are merely in the preparation stage for the designation of an urban development project as stipulated in the Urban Development Act, and there is no authorization for an implementation plan falling under the basic cases for recognizing property value, as well as the situation that is not designated as an urban development zone.

Therefore, even if the land in this case is publicly announced and the urban development project in this case is successful, compensation for the land in this case can be made, and even if the plaintiff can gain a substantial benefit therefrom, such circumstance alone cannot be readily concluded that the land in this case had property value at the time of commencement of inheritance (this taxation is applicable to forecast taxation of unrealized capital gains).

Furthermore, considering the supplementary circumstances as to whether the land of this case is substantially valuable at the time of the conclusion of fact-finding pleadings, comprehensively taking account of the overall purport of pleadings as to the items in subparagraphs 9, 10, and 7-2 of the evidence Nos. 7-2, the urban development project of this case was established on September 23, 2009 by an urban development project association and approved the establishment of an association on October 9, 2009, but it appears that the project was not properly implemented for various reasons thereafter, and there is a example of waiver of an urban development project such as an urban development project association, etc. as alleged by the Plaintiff, and there is no counter-proof otherwise. Thus, the Plaintiff is not obliged to bear large amount of inheritance tax according to an uncertain prediction in the situation where the land of this case is actually used and profit-making, and the Urban Development Act provides for the cancellation of the designation of an urban development zone if the urban development project fails to proceed for a certain period. In light of the counter-matters situation, it is difficult to recognize the real value of the land of this case.

Therefore, the disposition of this case is unlawful, so the disposition of this case must be revoked. The plaintiff's assertion is with merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion. Thus, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked and the disposition of this case is revoked, and this decision is delivered