Gwangju District Court 2012Guhap2160 ( December 27, 2012)

Early High Court Decision 201No3799 ( October 15, 2012)

disposition assessed against donated property is not contrary to the Constitution.

If an objective exchange price formed by a normal transaction is in the valuation of donated property, the valuation of the donated property is in conformity with the market price principle, and thus, it cannot be deemed as a violation of the principle of excessive prohibition under the Constitution or an illegal provision beyond the delegation scope under the mother law, considering that it conforms to the market price principle.

2012Nu1395 Revocation of Disposition of Imposition of Gift Tax

UnionA

Head of Seogju Tax Office

Gwangju District Court Decision 2012Guhap2160 Decided September 27, 2012

December 20, 2012

January 24, 2013

1. The plaintiff (appointed party)'s appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Appointed Party).

The first instance judgment is revoked, and the defendant's imposition of KRW 00 on the plaintiff (appointed parties, and hereinafter referred to as "the plaintiff") on August 9, 2011 and the imposition of KRW 000 on the gift tax against the selected and KRW 000 on the Selected ParkCC shall be revoked.

1. Quotation of judgment of the first instance;

This court's reasoning, and evidence added at the trial, which is insufficient to admit the plaintiff's argument that the comparative apartment is not similar to the apartment of this case, and rejected each video of No. 10 No. 1 and No. 13, and cited it in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, as it is stated in the reasoning of the judgment of the court of first instance, except for the addition of the judgment on the new argument at the trial of the plaintiff as follows.

2. The addition;

A. The plaintiff's new assertion

According to Article 49(1)(b) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22579, Dec. 30, 2010; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act") which is the basis for the disposition of this case, where there is a sale of donated property during the period of three months before or after the date of donation, the value of the sale would be deemed to be the market price which serves as the basis for imposing gift tax, and where there is a sale of donated property during the period of three months before or after the date of donation, the period of three months before the date of donation shall not be particularly a problem, but the transaction is made within three months after the date of donation, and the transaction price shall be calculated by evaluating the market price of donated property within three months after the date of donation, and the market price of donated property shall be naturally assessed as the market price of donated property because there is no transaction for three months before the date of donation.

The right to pursue happiness, such as the freedom of contract of the donee who has entered into a contract of gift, is infringed upon, and the officially announced value is identical, and two separate movables which have not been traded during the three-month period prior to the date of donation are donated. If only one of them was sold during the three-month period following the date of donation, if the sale and purchase transaction had been established, then the evaluation of donated property would be otherwise infringed on the right to equality by different evaluation of donated property according to the contingency of the transaction after the date of donation. Thus, the provision of the Enforcement Decree of this case violates Articles 23(1) and 11(1) and 37(2) of the Constitution, and thus, it is unlawful for the disposition of this case to be taken by applying the aforementioned provisions.

B. Determination

Article 60 of the Inheritance Tax and Gift Tax Act, and Article 60 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") declares the market value principle in the evaluation of inherited or donated property under paragraph (1), and stipulates the specific scope of the market price under the premise that its market price is formed through general and normal transactions and that it should reflect an objective exchange value at a proper level, and stipulates that the specific scope of the market price shall be determined by the Presidential Decree, and it shall be limited to the transactions subject to the calculation of donated property in case where the provisions of this case are traded, appraised, or auction or public sale, etc., and it shall be within three months before and after the date of donation, and it shall be clearly defined the starting scope of the transactions, and it shall be 3 months before and after the date of donation, that there is no particular change in the situation of the general transactions of the relevant property, and that the market price shall be 10 months after the exchange price established by the regular transactions, and that there is no reason to view that there is no more objective provision that the market price should be different from the market price.

3. Conclusion

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