Cho High Court Decision 2010Du2577 ( November 30, 2010)

Where evaluating the real estate rights authorized for a management and disposal plan, the appraisal value shall not be the market price.

When evaluating the right to real estate with the approval of a management and disposal plan, the appraised value of land and buildings after the completion of the project, which serves as the basis for calculating proportionality, may vary depending on the business fluctuations, and the project cost may also increase or decrease considerably due to the change of the project plan or the increase of the cost due to the delay of the project, etc.

2011Guhap4091 Revocation of Disposition of Levying Inheritance Tax

XX

The director of the tax office.

September 22, 2011

October 27, 2011

1. The part that exceeds KRW 1,518,200,670 among the disposition of imposition of inheritance tax of KRW 3,380,894,550 against the Plaintiff on May 13, 2010 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On January 10, 2009, the Plaintiff succeeded to the property of the deceased, who is the husband of the Plaintiff (hereinafter “the deceased”). On July 31, 2009, the Plaintiff reported the amount of inheritance tax to be paid as KRW 9,99,467,405, and the amount of inheritance tax to be paid as KRW 4,293,779,267, and the amount of inheritance tax to be paid as KRW 1,518,20,670,00. At the time, the Plaintiff, one of the inherited property, assessed the Seoul Yongsan-gu Seoul, which is the husband of the Plaintiff, as the officially announced value or at a price calculated and publicly announced by the Commissioner of the National Tax Service, reported the amount of inheritance tax to be paid as KRW 4,726,00,00,00.

B. Meanwhile, the instant real estate was incorporated into the Urban Environment Improvement Zone Three Urban Environment Zone Urban Planning Zone (hereinafter referred to as the “Improvement Zone”) under the Yongsan-gu Seoul Metropolitan Government Public Notice No. 2007-51, which was the public notice of project implementation approval on September 21, 2007, and the Urban Environment Improvement Project Association Three Zone Three (hereinafter referred to as the “Urban Environment Improvement Project Association”) was authorized by the head of Yongsan-gu Seoul Metropolitan Government on November 17, 2008 (hereinafter referred to as the “Management and Disposal Plan in this case”). According to the Management and Disposal Plan in this case, the proportional rate calculated by deducting total project costs from the appraised value of assets after the completion of the project and dividing the amount of the previous asset by the appraised value [1,238,817,863,393 won after the completion of the project]

C. However, from October 21, 2009 to January 12, 2010, the director of the Seoul Regional Tax Office: (a) conducted an investigation into the deceased’s inherited property; and (b) notified the Defendant that the instant real estate, which is an inherited property, constitutes “right to acquire real estate” rather than the real estate itself; and (c) the appraisal value assessed by two appraisal corporations as of the date of authorization for the implementation of the instant management and disposition plan at the request of the non-party association, shall be assessed as KRW 10,469,660,384 by multiplying the proportional rate at

D. On May 13, 2010, the Defendant assessed the value of the instant real estate against the Plaintiff in the above manner, and determined the inheritance tax base of the entire inherited property as KRW 10,542,712,847, and imposed KRW 3,380,894,550 on the Plaintiff (hereinafter “instant disposition”).

[Grounds for recognition] Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The assertion that real estate cannot be viewed as a right to acquire real estate

The term “right to acquire real estate” under Article 61(5) of the former Inheritance Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax Act”) means a specific right only when the subject of enjoyment, such as superficies, leases, and other rights to use specific facilities, is specific. However, the following procedures, such as a sale plan or relocation procedure, have not been fully followed after the approval of the instant management and disposal plan on November 17, 2008, and accordingly, the location, area, type, etc. of the subject of sale in lieu of the instant real estate, are not entirely specified.

Therefore, since the real estate of this case does not have the substance as "specific right that can still be the object of assessment", the disposition of this case, which is rendered on a different premise, is unlawful since the plaintiff's property inherited is not the right to acquire the real estate, but the real estate itself is not the right

(2) The assertion that the appraisal by way of multiplying the appraisal value by the proportional ratio is unlawful

Even if the Plaintiff’s right to acquire inherited property is “right to acquire real estate,” Article 51(2) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter “former Enforcement Decree of the Inheritance Tax Act”) provides that the value of the right to acquire real estate shall be based on the aggregate of the paid amount by the evaluation date and the amount equivalent to the premium as of the evaluation date and the amount equivalent to the premium as of the evaluation date. Thus, the method of multiplying the appraisal value as of the date of authorization for project implementation by the proportion at the time of authorization for the management and disposal plan of this case is not only a legal basis

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the assertion that it cannot be viewed as a right to acquire real estate

As seen earlier, on November 17, 2008, the non-party union succeeded to the real estate of this case upon the death of the deceased on January 10, 2009 by the head of Yongsan-gu Seoul Metropolitan Government. The management and disposal plan is a series of plans to convert the ownership of the previous land or buildings in the area where the improvement project is implemented and distribute the rights other than the ownership to the newly developed land and constructed facilities through the improvement project. As such, the rights of the members of the association can be converted to the right to purchase the previous land and buildings in which the concept of ownership of the previous land and buildings is permanent and newly constructed, and there is no change in the direct relation of rights by the transfer examination, which is the subsequent execution.

Therefore, in light of the above legal principles, since the plaintiff's inherited property is not the real estate itself but the right to acquire real estate, the plaintiff's assertion on this part is without merit.

(2) As to the assertion that the appraisal value by means of multiplying the appraisal value by the proportional ratio is unlawful

According to Article 51 (2) of the former Enforcement Decree of the Inheritance Tax Act, the value of a right to acquire real estate (including the right to acquire a building and its appurtenant land when a building is completed) shall be based on the amount paid until the evaluation base date and the amount equivalent to the premium as of the evaluation base date. However, in the case of a plaintiff who is a partner, there is no amount paid until the commencement date of inheritance which is the evaluation base date, and barring special circumstances, it is reasonable to view that the plaintiff's value at the time of commencing the inheritance of a building which

However, the defendant calculated the market price of the real estate in this case with the appraisal amount assessed by the appraisal institution as of the date of authorization of the management and disposal plan of this case multiplied by the proportion rate at the time of authorization of the management and disposal plan of this case, but there is no provision that the appraisal value of the real estate can be assessed by applying the proportion rate, i.e., the following circumstances acknowledged as above and the result of fact inquiry about the non-party union of this court; ② the proportional rate is the amount calculated by dividing the appraised value of the land and buildings after the completion of the project by the appraised value of the previous land and buildings; ③ the estimated value to estimate the development gains from the completion of the urban improvement project; ③ The proportional rate is only the estimated value to present one standard for the cost sharing so that the landowners in the rearrangement project area can decide whether to participate in the project; ③ The method of calculating the association is difficult to conclude that there is an objective and reasonable difference in the calculation method of the association; ④ The appraised value of the land and buildings after completion of the project, which is the basis for calculating the proportion at the time of the management and disposal plan of this case.

Therefore, since the disposition of this case is unlawful, this part of the plaintiff's assertion is reasonable (However, with respect to the real estate of this case or the property similar to the real estate of this case, there is no value confirmed by sale, appraisal, expropriation, auction or public auction for a period not exceeding six months before or after January 10, 2009, which was the date of commencing the inheritance, and there is no other evidence to recognize "market price assessed in an objective and reasonable manner for the real estate of this case". Thus, among the disposition of this case, there is no evidence to recognize

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.