The propriety of the disposition to apply the transaction example of neighboring apartment.

If there are other trading cases identical or similar to the donated property according to the substance over form principle, and the objective exchange price formed by normal transactions, it is reasonable to evaluate the donated property at the market price.

Article 60 of the Inheritance Tax and Gift Tax Act (Principles of Appraisal, etc.)

Article 49 (Principles, etc. of Appraisal)

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of KRW 121,732,640 against the plaintiff on September 01, 2005.

The reasoning of the court's explanation concerning this case is the same as that of the judgment of the court of first instance, and thus, it is acceptable to accept this case in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2007Guhap726 (2007.05)]

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 121,732,640 against the Plaintiff on September 1, 2005 is revoked.

1. Details of the disposition;

A. On January 31, 2005, the Plaintiff donated ○○○○○○○○○○○○○ apartment, ○○○○○○○○dong, 403, 159.74 square meters (hereinafter “the apartment of this case”). On April 30 of the same year, the Plaintiff reported and paid KRW 170,920,620, which was calculated by evaluating the value of donated property of the apartment of this case to the Defendant as the standard market price of the apartment of this case, on April 30 of the same year.

B. On September 1, 2005, the Defendant assessed the market price of the apartment of this case, which is 80 million won, the actual sale price of ○○ apartment B, 907, B, 1208, and A203 located in the same complex as the apartment of this case, and imposed and notified additional gift tax of 121,732,640 won (including additional tax of 4,366,038 won) on the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff raised an objection against the Defendant on December 5, 2005, but the Defendant dismissed the Plaintiff’s objection on December 29, 2005, and the Plaintiff requested the Director of the National Tax Tribunal for the adjudgment on March 28, 2006, but the Director of the National Tax Tribunal dismissed the Plaintiff’s request for adjudgment on October 2 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 3, Gap evidence 4-1, 2, Gap evidence 5, Eul evidence 1-1 and 2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) Invalidity of Article 49(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Act")

(A) In addition, there is no provision as to whether the sale price of the property subject to appraisal and the property subject to comparison is different, and the sale price of the property subject to appraisal and the property subject to comparison are different from the property subject to appraisal and the appraisal, expropriation, public sale, and auction price of the property subject to appraisal and the property subject to comparison in cases where there are many different appraisal prices, and if there are many appraisal prices of the property subject to appraisal and the property subject to comparison, which price should be the same as, or similar to, one of them, and whether all of them should be identical or similar to, one of the several factors. In addition, there is no provision as to the comprehensive delegation without any criteria, and there is no provision as to whether the factors should be applied to the sale price prior to the sale price, the average price of all the sale prices, and the highest price or minimum price.

(B) In addition, the tax burden should be significantly different depending on whether the pertinent taxpayer was fully aware of and unforeseeable another person’s property, and on the grounds that it is difficult to find the same property as, or similar to, the property subject to assessment other than apartment buildings, general housing, and land, etc., the tax authority’s practical practice is imposing tax by finding out the sales practice of exclusive apartment houses and thus violating the principle of tax equality.

(C) In the case of an apartment, it is impossible to confirm whether there is a sale, appraisal, expropriation, auction, public sale, etc. among apartment complexes of several hundred households that are identical in the same complex, and its value is not possible. Therefore, there is no predictability among taxpayers. In addition, the above provision, which provides that the sale price of other apartment units for six months before and after the tax base date shall be deemed identical to the market price of the property subject to appraisal and the transaction price of other comparable properties similar to that of the property subject to appraisal, is in violation of the rule of law in Japan.

(ii)an unjust disposition based on abuse of discretionary power and administrative convenience;

Even if the above provision is valid, the sales price of neighboring apartment that the defendant deemed similar to the apartment of this case without examining whether there was a sale, appraisal, public sale, auction, etc. for three months before or after the evaluation base date of the apartment of this case as to all the apartment of this case, which is deemed similar to the apartment of this case, has abused discretionary power only on the ground of administrative convenience, and it is not similar to the Adong to which the apartment of this case belongs. Further, the Adong 203, which is a different comparison, is more than three months from the time of donation of the apartment of this case as of October 30, 2004, and the sales price of the apartment of this case is not recognized as the market price of the apartment of this case.

(3) Incompetence of imposing additional dues;

Since the Plaintiff could not know all other apartment sales facts, it is unreasonable that the Plaintiff reported and paid gift tax by applying the standard market price of the National Tax Service, and there is no negligence in relation thereto, and that the Defendant imposed an additional tax on the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination on the assertion of invalidation under Article 49(5) of the Enforcement Decree of the Act

(A) Whether the comprehensive delegation and the clarification of the tax base violate

Article 60(1) of the Enforcement Decree of the Act provides that the market price of the pertinent property shall be calculated based on the market price as of the date of donation (Article 60(1) of the Act). In the event that there is a trade fact within three months before and after the date of donation which is ordinarily recognized as a case of free transaction between many and unspecified persons on the same or similar property, the transaction price of the relevant property shall be considered as the market price (Article 60(2) of the Act and Article 49(1), (2), and (5) of the Enforcement Decree of the Act). Article 49(5) of the Enforcement Decree of the Act provides that the market price of the pertinent property shall be calculated based on the same or similar property in addition to the pertinent property. However, the above provision provides that if the market price of the pertinent property is calculated by Presidential Decree No. 18177 of Dec. 30, 203 and its legislative purpose is to eliminate unreasonable factors that are substantially identical or similar to the pertinent property's market price, the above provision can not be seen as a comprehensive provision of Article 9(2).

(B) Whether the principle of tax equality is violated

If there are cases of trading other assets identical or similar to donated property, and the case of such trading is normal transactions reflecting objective exchange values, it would be the most reasonable to evaluate the value of donated property by deeming it as the market price: Provided, That it is difficult to view that the disposition of this case is contrary to the principle of tax equality because there are many cases of imposing gift tax on the same or similar transaction just because there are many cases of taxation on commercial buildings, general houses, land, etc. due to the lack of investigation capabilities by the tax authorities, and because taxation data on the trading cases are not sufficiently accumulated in the case of commercial buildings, general houses, land, etc., it is difficult to deem that the same or similar transaction cases were discovered, not

(C) Exclusion of predictability and whether it violates the rules of law on the day-to-day price

Article 49(5) of the Enforcement Decree of the Act provides that “The market price shall be determined by the standards for the evaluation of donated property” under the premise that it is an objective exchange price formed through a normal transaction, and only one time transaction price determined by the transaction means the transaction price determined by the transaction. From the perspective of the taxpayer in question, it is not practically impossible to confirm the transaction price in the vicinity of the taxpayer in question, such as the area, location, use, and items of the same or similar property, and whether it is impossible to confirm the transaction price thereof. In light of the above, Article 49(5) of the Enforcement Decree of the Act does not stipulate that Article 49(

(2) Determination on the abuse of discretionary power and the assertion of unjust disposition based on administrative convenience

The value of the property on which gift tax is levied shall be calculated on the basis of the market price as of the date of donation (Article 60(2) of the Act), and where there is a fact of transaction within 3 months before or after the date of donation which is generally accepted if there is a fact of transaction between many and unspecified persons with respect to the same or similar property, the value of the property concerned shall be considered as the market price of the property (Article 60(2) of the Act and Article 49(1), (2), and (5) of the Enforcement Decree of the Act

As to the instant case, comprehensively taking account of the overall purport of the pleadings in the descriptions of the health class, A2, A3, A4-1, A4-2, A6-1 through 4, A6-2, and B-4, the facts that the size, location, date of sale, transaction amount, and standard market price of other apartment units located in the same complex as the instant apartment complex are as shown in the following table can be acknowledged.

Classification

Location

apartment name

Dong

Number of houses

Area (Size)

Date of sale

(Date of Donation)

Amount of transaction ( won)

Standard market price (won)

(204.4.30. Criteria)

This case

Apartment house

○○○○○○○○○○ Dong ○○

○

Adong

403

159.74

January 31, 2005

543,000,000

neighboring

Apartment house

○○○○○○○○○○ Dong ○○

○

B Dong

907

159.74

December 6, 2004

80 million won

561,000,000

neighboring

Apartment house

○○○○○○○○○○ Dong ○○

○

B Dong

1208

159.74

December 10, 2004

80 million won

561,000,000

neighboring

Apartment house

○○○○○○○○○○ Dong ○○

○

Adong

203

159.74

o October 30, 2004

80 million won

526,000,000

As seen in the above facts, although the apartment of this case and the apartment of this case are different from the apartment of this case, the apartment of this case and the apartment of this case are located within the same complex, their location is similar, but the area, use and category are identical, and the sales contract was concluded with each of 800 million won within 3 months before the donation date of this case. Although the apartment of this case is traded 80 million won at the time prior to 3 months prior to the donation date of the apartment of this case, even though it does not correspond to the value stipulated in Article 49 (5) of the Enforcement Decree of the Act, the apartment of this case is located in the Dong of this case as well as the number of floors is not so different that it can be an important reference material in assessing the market price of the apartment of this case. Furthermore, the standard market price of the apartment of this case B, 907 and B, 1208 is no more than the standard market price of this case in comparison with the standard market price of the apartment of this case.

(3) Determination as to unjust assertion on imposition of additional dues

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, the taxpayer’s intention and negligence is not considered as administrative sanctions imposed in accordance with the law when the taxpayer violates the duty to report and pay taxes under the law without justifiable grounds, and it does not constitute justifiable grounds (see, e.g., Supreme Court Decision 93Nu20467, Aug. 26, 1994).

With respect to this case, as seen above, the gift tax calculated on the basis of the standard market price, which is not the market price at the time of donation of the apartment in this case, should be imposed on the amount that falls short of the tax base, without considering the plaintiff's intention or negligence. Thus, the subjective circumstance that the plaintiff was unaware of the fact of sale of other apartment at the time of payment, etc., is difficult to deem that it falls under a justifiable cause in neglecting the plaintiff's duty.

In addition, considering the purport that the above additional tax is calculated at an annual interest rate of 10.9% as determined by the Presidential Decree in consideration of the general interest rate of financial institutions, and that it is intended to confiscate the amount corresponding to the profit corresponding to the general financial institution interest rate that the Plaintiff could have gained by the delay in payment, it would not be deemed that imposing the above additional tax is particularly improper for the Plaintiff even if the Plaintiff did not have any particular error in the market price of the apartment in this case

3. Conclusion

Therefore, the defendant's disposition of this case is legitimate and the plaintiff's claim of this case seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.