Examination transfer 2009-0029 (Law No. 23, 2009)

Even the appraisal value assessed retroactively by a taxpayer may be recognized as the market price in a reasonable case.

Although the tax authority imposed that the retroactive appraisal value cannot be recognized as the market price after three years from the commencement date of inheritance, the appraisal value can be recognized as the market price as long as it has been objectively and reasonably assessed, such as the selection of comparative standards, even if the retroactive appraisal value was prepared, it is reasonable to view the acquisition value of the transferred real

1. The Defendant’s imposition of capital gains tax of KRW 108,118,197 against the Plaintiff on November 10, 2008 shall be revoked.

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

The same shall apply to the order.

1. Circumstances of the disposition;

A. On July 11, 2005, the Plaintiff was succeeded to the 137.3 square meters of the land located in Sungnam-si BB Dong 2997-17 and the 311.62 square meters of the commercial housing of 317.62 square meters of the land. Thereafter, on August 13, 2007, the Plaintiff sold the building other than the above site (hereinafter referred to as the “instant land”) and the building attached thereto (hereinafter referred to as the “instant building”). The Plaintiff sold the instant land to KRW 630 million of the price, and received the payment by September 10, 2007, and completed the registration of ownership transfer on September 12, 2007 after receiving the payment by September 12, 2007.

B. Upon receipt of the Defendant’s prior notice of taxation of capital gains tax on June 30, 2008, the Plaintiff requested theCC’s appraisal corporation and the national appraisal corporation on July 14, 2008 on the market price as of July 11, 2005, which was the date of commencing the inheritance. The Plaintiff prepared the appraisal report on October 16, 2008; and the country’s appraisal corporation prepared each appraisal report on October 17, 2008; theCC’s appraisal report on the instant real estate was KRW 508,196,30 (= KRW 348,742,000 of the instant land + KRW 159,454,300 of the instant building + The country’s appraisal corporation assessed each of the instant real estate as KRW 525,278,760 (= KRW 35,607,000 of the instant land + KRW 169,760 of the instant building).

C. On November 30, 2007, the Plaintiff reported and paid KRW 1,406,770, which is KRW 604,337,370, which is the conversion acquisition value of the instant real estate. After that, the Plaintiff reported and paid KRW 516,737,530, which is the arithmetic mean of the appraised values of each of the above real estate on January 8, 2009, six months after the date the inheritance commenced. After that, the Plaintiff reported and paid KRW 5,563,690, including additional tax, at the price at the time of inheritance.

D. However, on November 10, 2008, the Defendant calculated the acquisition value of the instant real estate to the Plaintiff as the standard market price at the time of July 11, 2005, which was the date commencing the inheritance, and issued the instant disposition that corrected and notified KRW 108,118,197 for the portion belonging to the year 207.

E. On February 9, 2009, the Plaintiff filed a request for review with the Commissioner of the National Tax Service for the cancellation of the disposition of the instant case, but was dismissed on September 23, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 4 (including the number of each branch), the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

The phrase "including "Article 60 (2) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010)" refers to cases where the market price can be verified by any other means than the method prescribed by Article 49 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720, Feb. 9, 2008). However, since there is a reliable appraisal by requesting a retroactive appraisal to the two reliable appraisal institutions, it shall be deemed the acquisition value of the real estate.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) According to Article 60(1) and (3) of the Inheritance Tax and Gift Tax Act, the acquisition value of the instant real estate should first be calculated at the market price, and only where it is difficult to calculate the market price, the supplementary evaluation method stipulated in Article 61(1) of the Inheritance Tax and Gift Tax Act shall be applied.

In addition, the burden of proof on the fact that there was no choice of complementary evaluation method because it is difficult to calculate the market price is against the tax authority (Supreme Court Decision 92Nu16218 delivered on June 11, 1993).

(2) In this regard, the Defendant asserts that the acquisition value of the instant real estate should be calculated based on the supplementary assessment method, since the date of the preparation of each appraisal report as mentioned above was prepared three years after the date of commencing the inheritance date, and the appraisal value on each of the above appraisal statements does not correspond to the appraisal value deemed to be the market value under Article 49(2)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. However, in imposing transfer income tax based on the actual transaction value at the time of the acquisition of inherited assets, even though the tax authority assessed the acquisition value of the pertinent asset as the supplementary assessment method for the reason that it is difficult to assess the market value at the time of the inheritance of the pertinent assets, if the market value at the time of the inheritance of the pertinent assets is verified by the time of closing the argument in the lawsuit seeking revocation of the said taxation, the determination of illegality of taxation should be made based on whether the amount of the said taxation exceeds the determined tax amount, and as such, it means the objective exchange value formed by the ordinary transaction, this is a concept including the value assessed by objective and reasonable method.

(3) Meanwhile, in order to regard the appraisal price of an appraisal institution as the market price as the market price, it should be recognized that the appraisal was properly conducted and has been assessed in an objective and reasonable manner (Supreme Court Decision 2001Du6029 Decided May 30, 2003).

(3) On the premise of this legal principle, the appraisal value of theCC appraisal corporation and the national appraisal corporation, which are the public trust appraisal institution, prior to the above legal principles, shall be the appropriate comparative standard for the land of this case. The land of this case shall be determined at an objective and reasonable reasonable reasonable reasonable price by taking into account the land price fluctuation rate and the location, shape, environment, and current use of the pertinent land. In the case of the building of this case, it shall be determined at a reasonable price assessed by the cost method in accordance with the relevant Acts and subordinate statutes, comprehensively taking into account the structure, reuse, construction and management conditions, usage, phenomenon, etc. of the pertinent land. Therefore, Article 3 (1) and (2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Ordinance No. 424 of Feb. 5, 2005) is reasonable to deem the acquisition value of the instant real estate as the average

Ultimately, as long as the market price is proved, in calculating the acquisition value of the real estate of this case, if the market price is unknown, Article 61(1) of the Inheritance Tax and Gift Tax Act, which is applied Supplementaryly, cannot be applied, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion pointing this out is

3. Conclusion

If so, the plaintiff's claim for objection case is reasonable, and therefore, it is accepted.