The propriety of the disposition of the value of similar apartment sale cases at the market price of donated assets

In light of all the circumstances, such as the higher standard market price of the apartment similar to the apartment at the time of donation, and the market price offered by the National Bank Real Estate Bank apartment is similar to that of the apartment at the time of donation, it is not deemed that there was any error in the disposition of this case, which is assessed by the Defendant as the value of the apartment at issue as the value of the apartment at issue, on the ground that the sales apartment at the time of donation was similar to the apartment at the time of the apartment at the time of the sale.

Article 60 of the Inheritance Tax and Gift Tax Act

Article 49 of the Enforcement Decree of Inheritance Tax and Gift Tax Act

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 of KRW 7,514,50 (including additional tax) against the plaintiff on December 1, 2005 shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the whole purport of the pleadings in each entry in Gap evidence 2, 4, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-2, and Eul evidence 5:

A. On December 4, 2004, the Plaintiff, the husband, donated ○○○○, the Seocho-gu, Seoul, 1436-1 and 1409 (hereinafter “the apartment of this case”) on the ground of 20,000 m20,000 and 1409 (hereinafter “the apartment of this case”). On February 28, 2005, the Plaintiff assessed the donated value of the apartment of this case to the Defendant at KRW 300,000,00, which is the standard market price at the time of donation, at the National Tax Service at the time of donation, and reported the gift tax by applying the spouse deduction of KRW 300,000,000 under Article 53(1)1 of the Inheritance Tax and Gift Tax Act (hereinafter “the Act”).

B. Accordingly, the Defendant conducted a gift tax investigation on the Plaintiff from August 22, 2005 to September 23, 2005, assessed the value of the property of the instant apartment as KRW 370,00,000, which is the actual transaction price of the same apartment as the instant apartment, and notified the Plaintiff of correction and notification of KRW 7,514,50 (including additional tax) as the gift tax attributed to the year 2004 (hereinafter “instant disposition”).

C. On September 20, 2007, the Board of Audit and Inspection dismissed the Plaintiff’s request for examination on September 20, 2007.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant issued the instant disposition based on Article 60(1) and (2) of the Act and Article 49(1)1, (2)1, and (5) of the Enforcement Decree of the Act. The latter part of Article 60(2) of the Act provides that only those which can be presumed to be a certified price as an ordinary appraisal and assessment incidental thereto, shall be recognized as the market price under the conditions as prescribed by the Presidential Decree. Article 49(1)1, (2)1, and (5) of the Enforcement Decree of the Act provides that the transaction price of the pertinent property or similar property shall be recognized as the market price if there is a "sale fact" on the pertinent property or similar property, such transaction price shall be recognized as the market price, which goes beyond the limit of delegated legislation, and thus, the instant disposition is unlawful by applying Article 49(1)1, (2)1, and (5) of the Enforcement Decree of the Act.

2) The instant apartment is subject to a provisional attachment of KRW 110,00,000,00 for the claimed amount, and the sales apartment is facing the south side of Vietnam as a direction, and the sales apartment is viewed as the south side, and even though there is a big difference in the locational condition of the apartment, the instant apartment is deemed similar to the instant apartment and its size, location, use, and category, and thus, the instant disposition that reported the transaction value of the apartment at the market price of the instant apartment is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be acknowledged in full view of each of the evidence mentioned above, Eul evidence Nos. 2-3, 4, Eul evidence No. 3-1, Eul evidence No. 7, Eul evidence No. 8-1 through 3, and the whole purport of each of the statements and arguments mentioned above:

1) On January 30, 2005, the sales case apartment was composed of 508 square meters like the apartment of this case, and the sales contract was concluded on January 30, 2005. The transaction value is KRW 370,000,000.

2) The apartment of this case, as a west direction, faces the south side terminal, and the sales case of the apartment, faces the eromatic mountain as the south side.

3) The trend of the standard market price before and after the donation date of the instant apartment and sales case apartment is as follows.

Date of Notice or Basic Date

The apartment of this case

Case of sales apartment

non-higher

December 1, 2003

300,000,000 won

300,000,000 won

Notice by Commissioner of the National Tax Service

April 30, 2004

300,000,000 won

300,000,000 won

may 2, 2005

304,500,000 won

299,000,000 won

January 1, 2006

378,000,000 won

371,000,000 won

Notice by the Minister of Construction and Transportation

January 1, 2007

485,000,000 won

476,000,000 won

4) According to the detailed deliberation of the market price of apartment housing held by the National Tax Service, from November 4, 2004 to February 5, 2005, the sales price of the same-type apartment complex as the apartment complex of this case from 390,000,000 to 420,000,000. The sales price of the same-type apartment complex of the same apartment complex as the apartment complex of this case offered by the ○ Bank as of December 2, 2004 is 40,000 to 440,000,000,000 from 420,000,000 to 40,000,000 from 420,000,000 to 40,000,000.

C. Determination

1) As to the first argument

The latter part of Article 60(2) of the Act stipulates that only the items that can be presumed as a certified price accompanied by an ordinary appraisal shall be included in the market price under the conditions as prescribed by the Presidential Decree. Accordingly, Article 49(1)1, (2)1, and (5) of the Enforcement Decree of the Act provides that where there is a transaction event that has not been delegated by the latter part of Article 60(2) of the Act, the transaction price may be recognized as the market price, which goes beyond the limit of delegated legislation, and thus, the disposition of this case by applying such illegal laws is also unlawful.

On the other hand, Article 60 (1) of the Act provides that "the value of the property on which inheritance tax or gift tax is levied under this Act shall be based on the market value as of the date of commencing the inheritance or the date of donation (hereinafter referred to as the "date of appraisal"), and the market value under paragraph (2) of the same Article provides that "the value which is normally deemed to be established if a free transaction is made between many and unspecified persons" shall include the amount which is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as the expropriation and public auction price and appraisal price. According to the above provision method, the above abstract definition provision provides that "if the law makes a free transaction between many and unspecified persons," the specific contents of the value included in the market value shall be delegated to the Presidential Decree, and therefore, "value which is recognized as the market value delegated by the Presidential Decree" shall be deemed to be a specific amount of free transaction between many and unspecified persons, such as acceptance, public sale price and appraisal price, etc., rather than limited appraisal accompanied by the appraisal.

Therefore, this part of the plaintiff's assertion is without merit.

2) As to the second argument

The plaintiff's apartment and sales case apartment are remarkably different in the locational condition, so the sales case apartment does not constitute the same or similar property with the size, location, use, and item of the apartment of this case under Article 49 (5) of the Enforcement Decree of the Act.

According to Article 60(1) and (2) of the Act, and Article 49(1), (1), and (5) of the Enforcement Decree of the Act, the appraisal of the value of donated property shall be based on the market price as of the donation date, in principle, if there is a fact of sale of the same or similar property within 3 months before or after the donation date, the relevant value may be recognized as the market price. As seen above, apartment sales contract was made on January 30, 2005 within 3 months from the donation date of the apartment, and the same area was located within the same Dong and the same area was 00,000 won before and after the donation date, 400,000 won from the sale price of the apartment at 00,000 won from the sale price of the apartment at 00,000 won from the sale price of the apartment at 40,000 won from the sale price of the apartment at 00,000 won from the sale price of the apartment at 40,2005.

3. Conclusion

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