The burden of proving that the method of evaluating the inherited property cannot be selected as a supplementary method other than the market price.

According to the provisions of Article 5 (1) of the Enforcement Decree of the Inheritance Tax Act, the evaluation of inherited property shall, in principle, be evaluated according to its market price: Provided, That only when it is difficult to calculate the market price, the value may be calculated by a supplementary method pursuant to the provisions of paragraphs (2) through (5) of the same Article, and the burden of proof as to the fact that there was no need to select a supplementary evaluation method

Article 5 of the Enforcement Decree of Inheritance Tax Act

Supreme Court Decision 84Nu670 Decided March 12, 1985, Supreme Court Decision 86Nu584 Decided December 9, 1986, Supreme Court Decision 86Nu862 Decided June 23, 1987

[Judgment of the court below]

Head of Suwon Tax Office

Seoul High Court Decision 86Gu509 delivered on February 11, 1987

The judgment below is reversed and the case is remanded to Seoul High Court.

According to the reasoning of the judgment of the court below, on July 18, 1985, the court below acknowledged that the defendant calculated the property value by applying Article 5 (2) 1 (a) of the Enforcement Decree of the Inheritance Tax Act to the method of the previous imposition ( November 16, 1984) and deducted the amount equivalent to the amount already paid by the plaintiff from the amount equivalent to the amount of the tax already paid by applying the tax rate and dismissed the plaintiff's claim on the grounds that the defendant's land to be donated was publicly announced as a specific area on September 7, 1983, and the one-minute method was determined.

However, Article 5 (1) of the Enforcement Decree of the Inheritance Tax Act provides that the value at the time of imposition of the inheritance tax shall be calculated at the market price at the time of the imposition of the inheritance tax, and if it is difficult to calculate the market price, it shall be evaluated at the market price in principle. However, only if it is difficult to calculate the market price, the burden of proving that the value can be calculated by the supplementary method provided in paragraphs (2) through (5) of the same Article, and that there was no need to select a supplementary evaluation method due to the impossibility of calculating the market price. (See Supreme Court Decision 84Nu670 delivered on March 12, 1985; Supreme Court Decision 84Nu322 delivered on November 27, 1984.).

However, the court below's rejection of the Plaintiff's assertion on the ground that the Defendant's application of Article 5 (2) 1 (a) of the Enforcement Decree of the Inheritance Tax Act was unfair since it is easy for the Plaintiff to calculate the market price, and there is no evidence that the Defendant had easily recognizable the exchange value at the time of taxation. It is not erroneous in the misapprehension of Article 9 (1) of the Inheritance Tax Act and Article 5 of the Enforcement Decree of the same Act, and the burden of proof on the circumstances where it is difficult to calculate the market price.

The judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Young-young (Presiding Justice)