Cho Jae-2016- Daejeon-0793 (Law No. 18, 2016)

Since the gift tax was purchased at a low price from a person with a special relationship, the disposition is legitimate.

The amount of claims secured by the right to collateral security falls under the amount of claims secured by the property as of the base date of appraisal, and the plaintiff purchased the land of this case at a low price from a related party, and thus the disposition of gift tax

Articles 35 and 66 of the former Inheritance Tax and Gift Tax Act

2016Guhap1198 Revocation of Disposition of Imposition of Gift Tax

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○ Head of tax office

June 14, 2017

July 19, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On July 10, 2015, the Defendant revoked the imposition of gift tax ○○○○○ on the Plaintiff.

1. Details of the disposition;

A. On April 14, 201, the Plaintiff purchased the instant land from Donginina to ○○○○○○○○.

B. On July 10, 2015, the Defendant calculated the maximum debt amount of the right to collateral security concerning the instant land at the market price and assessed the maximum debt amount of the right to collateral security at the market price as the value of donated property, deeming that the Plaintiff acquired the instant land at a low price from a birth Aaa who is a specially related party to the instant land (hereinafter “instant disposition”). The Defendant issued a disposition imposing gift tax on the Plaintiff on the Plaintiff (hereinafter “instant disposition”).

C. On February 24, 2016, the Plaintiff filed an objection against the instant disposition, and filed an appeal with the Director of the Tax Tribunal. However, the Director of the Tax Tribunal dismissed the Plaintiff’s request for adjudication on May 18, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5, Eul evidence Nos. 1 to 3 and 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff did not acquire the instant land at a low price, the instant disposition that imposed gift tax on the Plaintiff on a different premise should be revoked on the ground that it was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Jan. 1, 2012; hereinafter “former Inheritance Tax and Gift Tax Act”) provides that in cases where an asset is acquired by transfer from another person at a price lower than the market price, the difference between the price and the market price of the relevant asset when it is acquired by transfer of the relevant asset (Article 35(1)1); the value of the asset on which gift tax is levied shall be the market price as of the date of donation (hereinafter “base date for appraisal”); and notwithstanding Article 60, the mortgaged asset shall be the value of the asset appraised as prescribed by the Presidential Decree based on the amount of the asset secured by the relevant asset and the appraised value under Article 60 as prescribed by the Presidential Decree; Article 66 subparag. 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 2304, Jul. 25, 201); and Article 36(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 3) shall be calculated as the maximum amount of the relevant asset at issue.

2) Article 66 of the former Inheritance Tax and Gift Tax Act, which provides special cases for the evaluation of property offered as security, provides for the purpose of calculating a value close to the market price by supplementing Article 60(1) of the former Inheritance Tax and Gift Tax Act, which provides for the principle of market price principle with respect to the evaluation of property. Since the amount of claims secured by the right to collateral security on the date of donation is likely to accurately reflect the market price of the ordinary property at the time of donation on the date of donation, only the amount of claims secured by the right to collateral security established on the date of donation and the right to collateral security established on the date of donation need not be considered as properly reflecting the market price of the property, barring any special circumstance, if the right to collateral security is established on the date of donation on the date of donation, it constitutes "property for which a mortgage or pledge is established" under Article 66(1)1 of the former Inheritance Tax and Gift Tax Act, and ultimately, the amount of claims secured by the right to collateral security falls under the amount of claims secured by the pertinent property as of the base date of appraisal (see Supreme Court Decision 2013Du13.

3) Examining the above evidence and evidence set forth in the evidence and evidence No. 4 (including a provisional number), aa had completed the establishment registration of a mortgage on the instant land with the maximum debt amount as of April 26, 2007 to the credit union. The secured debt amount as of the evaluation base date was completed on April 14, 201, the Plaintiff completed the establishment registration of a mortgage on the instant land with the maximum debt amount as of April 14, 201, with the maximum debt amount as of April 14, 201, and the fact that the secured debt amount as of the evaluation base date was ○○○○○. In light of the contents and the above legal principles, the market value as of the evaluation base date of the instant land is the aggregate of the claims secured by the relevant property. Accordingly, the instant disposition based on the premise is lawful.

4) On this issue, the Plaintiff asserts that the instant disposition against the Plaintiff, which did not gain any profit, is unfair, or that the instant land was sold at a voluntary auction on January 10, 2017, and the sale price was ○○○○○○○, thereby imposing gift tax on the Plaintiff, because the brick factory operated by the Plaintiff was in default and purchased the instant land.

However, in the following circumstances where evidence and evidence No. 6 stated above revealed the purport of the entire pleadings, i.e., the transfer of property between persons who are not persons with a special relationship, at a price considerably lower than the market price without justifiable grounds in light of transaction practices.

In the case of acquisition by transfer, the amount equivalent to the difference between the price and the market price shall be presumed to have been donated and the amount equivalent to the profits prescribed by the Presidential Decree shall be deemed to have been donated to the person who acquired such profits (Article 35(2) of the former Inheritance Tax and Gift Tax Act). While gift tax is not imposed on the acquisition by transfer at low-price with justifiable grounds, the Plaintiff falls under a related party prescribed by the former Inheritance Tax and Gift Tax Act and the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (Article 35(3) of the former Inheritance Tax and Gift Tax Act, and Articles 26(4) and 19(2)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the above provision shall not apply. (2) The market price includes the amount recognized as having been ordinarily established when transactions are freely conducted between many and unspecified persons, and the sale price of land shall be deemed to have been determined differently from the market price before and after 3 months before the base date of appraisal, appraisal, auction or public sale (Article 49(1)3) of the former Enforcement Decree).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

this decision is rendered.