Suwon District Court 2012Guhap572 ( November 13, 2012)

Whether the right to live in redevelopment of the real estate approved for the management and disposal plan is included in inherited property

According to the approval of the management plan, the redevelopment right to real estate is the right to acquire real estate included in the inherited property, and the road with no value of property is excluded from the inherited property.

Article 61 of the former Inheritance Tax and Gift Tax Act (Amended by Act No. 9916, Jan. 1, 2010)

2012Nu38468 Revocation of Disposition of Revocation of Inheritance Tax Imposition

00,000,00

Head of the High Tax Office

Suwon District Court Decision 2012Guhap572 Decided November 13, 2012

September 4, 2014

October 16, 2014

1. On November 7, 2013, upon a claim made by the Defendant for a change in exchange in the trial, the part of the imposition imposed by the Plaintiff on the Plaintiff Finding on November 7, 2013, which exceeds each of the imposition imposed by the KRW OOOOO in the imposition of the KRW OOOOO, the imposition imposed by the Plaintiff Help, the imposition imposed by the Plaintiff CC, the imposition imposed by the KRW OOOOO, the imposition of the KRW OOOOOOOO, the imposition imposed by the Plaintiff ChoD, the imposition of the KRW OOOOOOOO, the imposition of the KRW 10 imposed by the Plaintiff Professor, and the KRW OF in the imposition of the KRW OF of the inheritance tax.

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

1. Purport of claim

The paragraph 1 is the same (the plaintiff changed the purport of the claim in an appellate court to exchange it as above).

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Circumstances of dispositions;

A. The Plaintiffs are the spouses and children of Cho G, who died on April 29, 2009 (hereinafter “the deceased”).

B. On October 30, 2009, among inherited property, the Plaintiffs filed an OOO-dong HH-dong 37-13, 37-38, 37-123, 37-128, 37-128, and 37-129 land and buildings on its ground (hereinafter “HH-dong real property”) as OO-O-O, and paid OO-O-O-O3, 157-43, 1562-36, 1562-37 land value in total as O-O-O-O-O, the land category of which is a road.

C. However, unlike the above plaintiffs' report, the defendant viewed the value of H-dong real estate as the total of the appraisal value as of October 1, 2007, which is the value of H-dong real estate (II appraisal corporation II, October 23, 2007, the average appraisal value on each appraisal report prepared by JJ appraisal corporation, October 22, 2007, hereinafter referred to as "previous appraised value of assets") unlike the above plaintiffs' report, ① the value of H-dong 4 Urban Environment Rearrangement Project (hereinafter referred to as "the management disposition plan of this case") changed to H-dong real estate as the value of H-dong real estate as the value of 200 won under the old Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as "O-O-O-O-O-O-O-O's value of the above real estate is the value of the above 3-O-O-O's real estate acquired by the plaintiffs.

D. On April 18, 2011, the Defendant: (a) reduced the amount of KRW OO of the above inheritance tax (the amount of inheritance tax became an OOO (the amount of KRW 157-43, 1562-36, 1562-37) on November 7, 2013; (b) reduced the sum of the value of land subject to the above II-157-43, 1562-36, and 1562-37 from the value of inherited property; and (c) reduced the amount of KRW 100 among those of the above inheritance tax (the amount of inheritance tax was the amount of KRW 100,000, KRW 157-43, 156-36, 1562-37, and the amount of the inheritance tax imposed on KRW 137,000,000 for each of the above inheritance tax (the inheritance tax was imposed on KRW 157,2013).

Facts without dispute over the basis of recognition, Gap evidence Nos. 3, 5, Eul evidence Nos. 1, 2, 4 through 6, 8, 15 through 17 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) With respect to Hdong real estate, the plaintiffs' inherited property is not the right to acquire the real estate, but the "real estate" itself. Each appraisal report prepared on October 2007 with respect to Hdong real estate is not prepared within 6 months before and after the base date of appraisal, and it cannot be deemed that there was no special reason for price fluctuation with respect to Hdong real estate after the preparation of each appraisal report. Thus, the appraised value of the attached property, which is the average value of each of the above appraisal values, cannot be deemed as the market value of Hdong real estate. In addition, only with the approval of the management and disposal plan of this case, the rights recognized by the management and disposal plan of this case cannot be deemed as the "right to acquire the real estate" under Article 61 of the former Inheritance Tax and Gift Tax Act.

Even if the right recognized by the instant management and disposition plan falls under the right to acquire real estate, it is not permissible to recognize the amount of the instant right (the same shall apply to the appellate court’s subsequent appraisal value) calculated by multiplying the appraised value of HHdong real estate by the proportional ratio as the market price of the right recognized by the instant management and disposition plan as the market price of the right

Therefore, the part concerning Hdong real estate in the disposition of this case is deemed unlawful on a different premise.

2) The value of the II real estate constitutes a road in fact and thus should be evaluated as '0 won'. Nevertheless, the instant disposition that calculated the value of the II real estate as OO won is unlawful.

B. Relevant statutes

Attached Form 3 is the same as the entry of the relevant statutes.

C. Determination

1) As to the first claim of the plaintiffs (H-dong real estate part)

A) Whether the plaintiffs' inherited property is "right to acquire real estate" or "right to acquire real estate"

Comprehensively taking account of the overall purport of the arguments in the statements in Gap evidence Nos. 9 through 11, 16, and 18 through 20, H-dong real estate is incorporated into the H-dong Urban Environment Improvement Zone No. 2007-52 of Yongsan-gu Seoul Metropolitan Government public notice of project implementation authorization as of September 21, 2007, which is public notice of project implementation authorization as of September 21, 2007, and the Urban Environment Improvement Association of HH-dong No. 4, which implements an urban environment improvement project in the above rearrangement zone (hereinafter referred to as the "OH-dong Urban Environment Improvement Association") may recognize the fact that the management and disposal plan of this case was authorized by the head of Yongsan-gu Seoul Metropolitan Government on March 14, 2008, and thereafter, the fact that the plaintiffs inherited the deceased's property as of April

According to the above facts, since the deceased who provided Hdong real estate to the non-party union acquires the right to purchase the real estate to be sold in accordance with the authorization of the management plan of this case, it is called "the right to acquire the real estate in relation to Hdong real estate" (see Supreme Court Decision 2012Du18615, Jun. 12, 2014).

B) The market price at the time of the commencement of the inheritance of 'right to acquire 'real estate' related to Hdong real estate (hereinafter 'Hdong inherited property')

(1) In full view of each of the statements in Eul evidence Nos. 4 through 6 and the purport of the entire pleadings, the amount of the instant rights recognized by the defendant as the market price of Hdong inherited property shall be calculated by multiplying the appraised value of the previous assets by the proportional ratio of 162.418% as stipulated in the instant management and disposal plan, and the above proportional ratio of 162.418% can be acknowledged.

The method of calculating the rates of funeral service.

(1) The total estimated amount of the sites and constructed facilities after the completion of the project: OOO won.

(2) Total project cost: OO

(3) The total value of the previous land and buildings owned by a person eligible for sale: OO won.

(4) Maximum rate: [1-B] / [3] 】 100 = 162.418%

However, the value of the instant right calculated by the foregoing method cannot be recognized as the market price of H-dong inherited property for the following reasons (see Supreme Court Decision 2012Du18615, Jun. 12, 2014).

(A) there is no provision that justifys that the value of inherited property can be assessed by applying the proportionality ratio.

(B) The proportional rate is the amount calculated by dividing the total project cost from the appraised value of land and buildings after the completion of the project as the assessed value of the previous land and buildings. This is merely the estimated value to measure the development gains accrued from the completion of the urban environment rearrangement project.

(C) Since the proportionality is cosmeticed in figures to present a standard for the cost-sharing so that landowners, such as land in a rearrangement project zone can determine whether to participate in the project, it cannot be said that it is appropriate to use the proportionality to calculate the market price of inherited property different from its purpose and function, and it is difficult to readily conclude that the method of calculating the proportion is objective and reasonable.

(D) After the completion of the project, which serves as the basis for calculating the proportional rate, the appraised value of the land and buildings may be considerably different depending on the business fluctuations, and the total project cost may also be increased or decreased due to the change of the project plan or the increase in the cost due to the business delay.

(E) Therefore, the method of multiplying the assessed value of the previous asset by the proportional rate is not an objective and reasonable method for calculating the market value of the HH Dong inherited property.

(2) In full view of the purport of each appraisal commission with respect to the (ju) KK appraisal corporation and (ju)L appraisal corporation, the Defendant presented as auxiliary reference materials to the effect that the right value of the instant case is reasonable as the market value of the H-dong inherited property (the Defendant asserted as above in the Hain Document, which was submitted after the closing of the trial, on October 7, 2014). According to this court’s appraisal commission, KK made an application for the market value appraisal of H-dong inherited property at the time of the commencement of the inheritance (ju) KK appraisal corporation at the market price of the H-dong inherited property at the time of the commencement of the inheritance (based on the sale area and sale price stipulated in the management and disposal plan of this case; hereinafter the same shall apply). The same applies to the appraisal corporation at the time of the commencement of the inheritance of H-dong inherited property at the time of the acquisition of the inheritance property at the market price of the above OOO (hereinafter referred to as the “OO-owned value of the apartment house at the above disposal plan of this case.

However, the amount of the instant right is calculated by applying the proportional ratio. Since the amount of the refund included in the appellate court’s appraisal value is part of the amount of the instant right, the amount of the refund also can be deemed as the amount calculated by applying the proportional ratio. Therefore, the appellate court’s appraisal value including the amount of the refund on the grounds of the foregoing paragraph (1) cannot be deemed as the market price of the Hdong inherited Property calculated in an objective and reasonable manner.

(3) Article 51(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 21641, Jul. 27, 2009; hereinafter referred to as the “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”) provides that “The value of the right to acquire real estate (including the right to acquire a building and its appurtenant land upon completion of the building) shall be based on the total amount paid by the evaluation date and the amount equivalent to the frame as of the evaluation base date.”

Comprehensively taking account of the purport of the argument in the statement No. 4, the deceased’s acquisition of H-dong inherited property as a member of the non-party association. In the case of a member, such as the deceased, there is no “amount paid until the base date of appraisal” under Article 51(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. Thus, the market price of H-dong inherited property cannot be calculated by applying the above provision (see Supreme Court Decision 2012Du18615, Jun. 12, 2014).

C) Of the instant disposition, the part concerning Hdong inherited property among the disposition of this case is lawful, and the amount of the instant right or the appellate court’s appraisal value cannot be deemed as the market value of Hdong inherited property, and there are no other data to estimate the market value of Hdong inherited property. Thus, the part concerning Hdong inherited property among the disposition of this case is unlawful. Accordingly, the Plaintiffs’ first assertion is with merit.

2) Article 60 of the former Inheritance Tax and Gift Tax Act provides that, in principle, the value of the inherited property shall be the value of the inherited property at the time of the commencement of the inheritance. On the other hand, the general rule of the Inheritance Tax and Gift Tax Act provides that the value of the inherited property shall be the value of the inherited property at the time of the commencement of the inheritance, except in exceptional cases where the value of the inherited property is recognized as property value, such as where the market value of the inherited property is verified by the compensation price, etc., regardless of the land category on the public register, if the inherited property is actually offered for use by many unspecified persons at the time of the commencement of the inheritance, the appraised value cannot be considered as property value, and thus, it can be recognized that it is reasonable to impose inheritance tax on the inherited property as at the time of the commencement of the inheritance, and the common rule of the above general rule of the Inheritance Tax and Gift Tax is also applicable to the land category at the time of the commencement of the inheritance of the inheritance (see, e.g., Supreme Court Decision 90Du3638, etc.).

B) Comprehensively taking account of the overall purport of the pleadings and arguments in the statements and videos in Eul evidence Nos. 12 and 13, since it is acknowledged that the second real estate is merely a dead-end sloping way surrounded by three pages as a house, etc., this does not constitute a road that is commonly used by many and unspecified persons (see, e.g., Supreme Court Decisions 2003Du4270, Oct. 14, 2004; 2004Du10913, Aug. 25, 2005). Of the instant disposition, the part concerning the second real estate is lawful because it is included in the value of the inherited property on the premise that the second real estate does not fall under a road. The second plaintiffs' second assertion to this purport is without merit.

3) The scope of revocation of the resolution (the scope of revocation)

Whether a disposition is lawful is determined depending on whether it exceeds a reasonable amount of tax, and the parties can submit objective tax bases and materials supporting the amount of tax until the closing of argument in the fact-finding court. When the amount of tax to be imposed lawfully is calculated based on such materials, only the portion exceeding the reasonable amount of tax should be revoked, but in other cases, the entire amount of the tax disposition should be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995).

As seen earlier, the part concerning the second real estate among the disposition of this case is legitimate, but the part concerning the Hdong inherited property is unlawful, and there is no other data that can compute the market price of Hdong inherited property. Thus, it is difficult to calculate the reasonable tax amount of the plaintiffs' inherited property, which is the subject of the disposition of this case, and therefore, the disposition of this case should be revoked in principle.

However, as the plaintiffs have filed for partial revocation of the instant disposition, the part in excess of the amount stated in the Disposition No. 1 of this case should be revoked as requested by the plaintiffs.

3. Conclusion

Therefore, the plaintiffs' claims that have been changed in exchange at the trial of the party are justified (the part of the claim for revocation of the disposition of inheritance tax as of January 3, 201, which was the previous lawsuit, was withdrawn due to the exchange change at the trial of the party and the judgment of the first instance was invalidated). It is so decided as per Disposition.