early 208 Heavy1222 (208.07.07)

The number of buildings and floors of apartments is different, but where the standard market price is the same, the market price;

In full view of the fact that the apartment and the Dong and the number of floors are different, but the area, etc. are the same as the residential apartment in the same complex, the standard market price is similar, and there was no sudden change in the general trading price during three months before and after the donation, the defendant can be deemed to have similar to the apartment of this case, the area, location, and use of the apartment

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax amounting to KRW 50,466,240 on January 8, 2008 is revoked.

1. Circumstances of the disposition;

A. On May 25, 2007, the Plaintiff, as his mother, donated Do○-dong 967, Gangnam apartment around *** Dong 1301 (hereinafter “instant apartment”) from the same day, and completed the registration of ownership transfer based on the said donation on the same day.

B. On August 20, 2007, the Plaintiff reported and paid gift tax8.566 million won to the Defendant by calculating the standard market price of KRW 558,000,000 as notified by the Commissioner of the National Tax Service.

C. As a result of a survey on the sales cases of nearby apartment units before and after the donation date of this case ( May 25, 2007), the Defendant confirmed that the location and size of the apartment units in this case were the same as those of this case and the same 102 Dong Dong 602 on March 23, 2007 traded with the same 730 million won on March 23, 2007, and pursuant to Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act and Article 49(1) and (5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter referred to as the "Enforcement Decree"), the Defendant additionally included the penalty tax for Plaintiff 100,000,000 won at the market price of the apartment units in Seoul Special Metropolitan City, 102 Dong 602 and 602,00 won as of the donation date of this case (hereinafter referred to as the gift tax).

D. On April 7, 2008, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on April 7, 2008. On July 7, 2008, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s remaining claims by calculating the transaction value of KRW 720 million,000,000,000, which is the transaction value of the apartment of Do, 101-dong 1003, 1003 (hereinafter “instant comparative apartment”) at the market price of the instant apartment.

E. On July 28, 2008, according to the above decision of the Tax Tribunal, the Defendant corrected and notified the Plaintiff of KRW 50,466,240, which reduced the gift tax of KRW 2,681,760 from the initial amount of gift tax (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Since Article 60(2) of the Inheritance Tax and Gift Tax Act and Article 1149(5) of the Enforcement Decree (hereinafter “Enforcement Decree Article 49(5) of the Inheritance Tax and Gift Tax Act”) which are the basis of the disposition of this case are constitutional and invalid for the following reasons, the disposition to which this case was applied is unlawful.

(A) Article 60(2) of the Inheritance Tax and Gift Tax Act does not present a specific standard for calculating the market value of the pertinent property and delegates it to the Enforcement Decree. Thus, the instant provision goes against the principle of prohibition of comprehensive delegation. It goes against the principle of prohibition of comprehensive delegation. The instant provision goes beyond the scope of delegation under Article 60(2) of the Inheritance Tax and Gift Tax Act and goes beyond the bounds of delegation legislation by prescribing the transaction value of other property

(B) The phrase “other similar property” stipulated in the provision of this case is extremely abstract and complicatedly interpreted, thus undermining the predictability of the people, and undermining the predictability of the people, and in calculating the value of donated property, it is possible for tax authorities to impose arbitrary taxation on the same or similar property, thereby violating the principle of no taxation without the law or the principle of no taxation without the law of the Republic of Korea or the principle of no taxation without the excessive prohibition.

(2) The comparative apartment of this case is not identical or similar to the apartment of this case, and there is no other data to recognize the similarity, since the formation factor of the price is not identical or similar to the apartment of this case, the transaction price of the comparative apartment of this case cannot be deemed as the market price of the apartment of this case under Article 60 (2) of the Inheritance Tax and Gift Tax Act.

(b) relevant statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The apartment of this case (102 Dong 1302) is located in the 13th of the 21st floor, and the comparative apartment of this case (101 Dong 1003) located in the same complex is located in the 10th of the 22nd floor. The standard market price of the apartment of this case as of April 30, 2007 is 558 million won, and the standard market price of the comparative apartment of this case is 547 million won.

(2) The comparative apartment with the instant apartment is an apartment with the same direction and the same size (84.94m2). The instant comparative apartment was sold in the amount of KRW 720 million on August 4, 2007, which was within 3 months from the date of donation of the instant apartment ( May 25, 2007), and the said KRW 102 Dong 602 was sold in the amount of KRW 730 million on March 3, 2007.

(3) On February 2, 2007, the general transaction value of apartment buildings in the same area as the apartment of this case offered by ○○ Bank was KRW 730 million. From March 2007 to August 2007, the general transaction value was KRW 742.5 million.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 2, 3, 5, 6, 7 and the purport of the whole pleadings

D. Determination

(1) Judgment on the first proposal

Article 60 (1) and (2) of the Inheritance Tax and Gift Tax Act stipulate that the value of donated property is calculated by the "market price" as of the date of donation, and that the meaning of the "market price" includes the amount which is recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the expropriation, public sale price and appraisal price, in addition to the amount which is generally accepted in case of free transactions between many and unspecified persons. According to delegation of the above mother law, Article 49 (1) of the Enforcement Decree stipulates that the "market price of donated property" shall be determined as the case of sale, appraisal, expropriation, auction (referring to auction under the Civil Execution Act) or public sale during the period of three months before or after the base date of appraisal, and shall include specific criteria as each subparagraph. However, Article 49 (5) of the Enforcement Decree provides that the subject of market price assessment shall be expanded by expanding the area, location, use,

In light of the above, Article 60(2) of the Inheritance Tax and Gift Tax Act provides the approximate criteria for transactions that are recognized as the market price of donated property, such as acceptance, public auction, and appraisal as the transactions that are recognized as the market price. However, the meaning of "the specific criteria to be considered as the market price" is delegated to Presidential Decree because it is difficult to provide the complex transaction reality and any method of transactions following the continuous change in the form of transaction in the form of a formal law, and the above "the amount recognized as the market price as prescribed by Presidential Decree" refers to the amount expressed in the most objective market price among various transactional donated property in light of the above statutory provisions, it cannot be deemed that Article 60(2) of the Inheritance Tax and Gift Tax Act goes against the principle of prohibition

In addition, the market price under our Inheritance Tax and Gift Tax Act is based on the premise that it is an objective exchange price formed through normal transactions in principle. Article 49(1) of the Enforcement Decree provides that the market price of the donated property is a target transaction for a period not exceeding three months before or after the base date of appraisal, appraisal, expropriation, auction, or public sale within three months before or after the base date of appraisal. Article 49(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the time limit for market price calculation and its target transaction are specified by the example of specific price standards as each subparagraph. Article 49(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177 of Dec. 30, 203) provides that the legislative purpose of this case is to calculate the market price of the donated property, and thus, it is not unreasonable to recognize the market price of the donated property that is in fact identical or similar to the pertinent property as the market price without the principle of no taxation without the law.

(2) Judgment on the second ground

According to the above facts, the comparative apartment of this case is different from the apartment of this case, but it is identical to the area of the apartment of this case as a residential apartment in the same complex, and the standard market price as of April 30, 2007 is similar (the standard market price of the comparative apartment of this case is lower than the apartment of this case), and the comparative apartment of this case was traded within 3 months as of the date of the above donation, and the general transaction at the time of the above donation was the same as at the time of the sale of the comparative apartment of this case, and there was no sudden change in the general transaction price during 3 months before and after the above donation, the comparative apartment of this case is deemed similar to the apartment of this case, and it is legitimate for the defendant to take the disposition of this case by considering the sales price of the comparative apartment of this case 720 million won as the market price of the apartment of this case as of April 30, 207.

3. Conclusion

If so, the plaintiff's claim for objection case is without merit, so it is judged the same as the order.