The legitimacy of the assertion that the inheritance shares assessed by supplementary means should be determined as the public auction price.

If anyone regards all the public auction procedures whose opportunity to participate in the bidding is guaranteed, it shall not interfere with the case of free trade between many and unspecified persons, and therefore it shall be reasonable to view the amount of the public auction as the market price.

Article 60 of the Inheritance Tax and Gift Tax Act: Principles of Appraisal

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

1. The part that exceeds KRW 1,505,692,862 of the disposition of imposition of inheritance tax of KRW 2,092,658,079 against the plaintiffs on July 5, 2004 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

가. 주식회사 ○○○(이하 '소외 회사'라고 한다)의 주주이던 망 김○○가 사망하면서 그 아들인 김○○ 소외 회사의 주식(비상장)을 상속받았고, 1995. 2. ##. 그 중 59,000주를 상속세로 물납하였다. 한편, 위 김○○ 등 31인은 그 무렵 재단법인 ○○장학회에 소외 회사 주식 81,742주를 출연하였고, 위 장학회는 1995. 9. ##. 그 중 14,360주를 증여세로 물납하였다.

나. ○○○○관리공사(변경 전 명칭 : ○○공사)는 재정경제부로부터 위 물납주식의 매각을 위탁받아 1998. 11. ##. 국유재산법 시행규칙이 정하는 바에 따라 자산가치와 수익가치를 산정한 후 이를 기초로 하여 최저매각예정가격을 1주당 14,230원으로 정하여 공매절차(이하 '이 사건 공매절차'라고 한다)를 개시하였다. 그러나 1998년 2회, 1999년 4회 등 총 6회에 걸쳐 응찰자가 없어 공매가 유찰되자, ○○○○관리공사는 1999. 6. ##. 최저매각예정가액을 1주당 7,115원으로 정하여 제7회 입찰기일을 열었는데, 당시 원고 ○○○과 김○○ 2인이 입찰에 참가하여 그 중 입찰금액이 높은 원고 김○○이 1주당 7,115원에 낙찰 받았다. 이에 따라 원고 홍○○은 대한민국과 사이에 주식양수도계약을 체결하고 위 물납주식을 1주당 7,115원에 양도받았다.

다. 한편, 소외 회사 주주인 망 ○○○은 1999. 10. ##. 사망하면서 소외 회사 주식 188,688주(이하 '이 사건 주식'이라 한다)를 원고 ○○○에게 유증하였다. 이에 원고들은 2000. 3.경 이 사건 주식의 상속 당시 시가를 위 공매가격과 같이 1주당 7,115원으로 보아 총 상속재산가액을 4,947,178,746원{이 사건 주식 1,342,515,120원(188,688주X7,115원) + 기타 상속재산 3,604,663,626원}으로 보아 상속세액을 1,369,879,711원으로 신고하면서 소외 회사 주식 26,186주를 물납하였다.

라. 이에 대하여 피고는 2004. 7. ##. 위 공매가격을 이 사건 주식의 시가로 보지 아니하고 상속세 및 증여세법 제60조 및 같은 법 시행령(2002. 12. 30. 대통령령 제17828호로 개정되기 전의 것, 이하 같다) 제54조 제1항이 정한 보충적 평가방법에 따라 이 사건 주식의 순손익가치에 의한 가액을 1주당 41,973원씩 총 7,919,843,397원으로 산정하고 이를 기초로 한 총 결정세액 4,471,885,421원 중 원고들이 기히 납부한 금액을 차감한 상속세 1,099,115,900원을 경정 · 고지하였다.

마. 원고들은 이에 불복하여 2004. 8. ## 국세심판원에 심판청구를 제기하였고, 국세심판원은 2006. 4. ##. '피고가 2004. 7. ##. 원고들에게 한 1999년 상속세 1,099,115,900원의 부과처분은 원고들이 피상속인들로부터 상속받은 이 사건 주식의 1주당 가액을 ○○○○관리공사가 최초로 산정한 최저매각예정가격 14,230원으로 하여 상속세 과세표준 및 세액을 경정한다'는 결정을 하였는바, 이에 따라 피고는 총 결정세액을 2,092,658,079원으로 산정한 후 물납 주식 12,052주 등을 환급하였다.

[Ground for Recognition] Evidence No. 1-2, Evidence No. 3, Evidence No. 4-1, 2, 11, evidence No. 5-1, 6, 7, evidence No. 6, evidence No. 7-1, 2, evidence No. 8-1 through 3, evidence No. 9, evidence No. 13-1 through 5, fact inquiry results of this court's ○○○○○○ Management Corporation, and the purport of the whole pleadings

2. Determination of legality of disposition

A. The parties' assertion

(1) The defendant's assertion

7,115 won per share, which is the public sale price of the stocks of this case, is 50% of the initially estimated sale price, and 17.02% of the value assessed by the supplementary assessment method. The Kim○○ who participated in the public sale of this case at the same time, is an employee of ○○○○ Factory Co., Ltd. and ○○○○○ Engineering Co., Ltd., whose representative director was the Plaintiff○○○○○○○○○○○○ Co., Ltd., and ○○○○○○ Engineering Co., Ltd., whose bid price was 563,637,200 won, and 563,637,100 won of the bid price of ○○○○○○○ Co., Ltd., Ltd., whose total amount was 563,637,100 won and 100 won

(2) The plaintiffs' assertion

The value of property on which inheritance tax is levied is based on the market price as of the commencement date of the inheritance, and the market price is ordinarily established when transactions are freely conducted between many and unspecified persons, and the price of the public sale made within six months (three months in the case of donated property) before and after the commencement date of the inheritance. Thus, 7,115 won per share, which is the public sale price of this case, constitutes the market price on which inheritance tax or gift tax is imposed, and no other ground exists to recognize 14,230 won as the market price calculated by ○○○○ Management Corporation in the public sale

(b) Related statutes;

m. Inheritance Tax and Gift Tax Act

Article 60 (Principles for Evaluation, etc.)

(1) The value of property on which an inheritance tax or a gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under the provisions of Article 63 (2))

(2) The market price referred to in paragraph (1) shall be the price which is deemed to be normal in the case of free trade between many and unspecified persons, and shall include the price which is deemed to be the market price, such as the expropriation and public auction price and appraisal

(3) In the application of paragraph (1), where it is difficult to compute the market price, the value assessed by the methods prescribed in Articles 61 through 65 in consideration of the type, size, transaction status, etc. of the relevant property.

Article 63 (Evaluation of Securities, etc.)

(1) The appraisal of securities, etc. shall be conducted by the following methods:

1. Appraisal of stocks and investment shares:

(c) Stocks and equity shares not listed on the Korea Stock Exchange other than those under item (b) shall be balanced by the method prescribed by the Presidential Decree, taking into account the corporation's own profits and losses;

(1) Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 16660 of December 31, 199)

Article 49 (Principles for Evaluation, etc.)

(1) The term "those recognized as the market price under the conditions as prescribed by the Presidential Decree, such as expropriation, public auction price, appraisal value, etc." in Article 60 (2) of the Act means the amount confirmed pursuant to the provisions of any of the following subparagraphs only where the sale, appraisal, expropriation, auction (referring to an auction under the Civil Procedure Act; hereafter the same shall apply in this paragraph) or public auction is conducted from six months (three months in the case of donated property) before the base date of appraisal to the period of report on the tax base of inheritance tax

1. The transaction value, if any, of the relevant property: Provided, That the amount of such transaction is deemed objectively unfair, including transactions with a person with a special relationship provided for in Article 26 (4) shall be excluded herefrom;

2. In case where there exist the appraisal values assessed by the reliable appraisal institutions prescribed by the Ordinance of the Ministry of Finance and Economy (hereinafter referred to as the “appraisal institutions”) with respect to the relevant property (excluding the properties prescribed in Article 63 (1) 1 of the Act), for the purpose other than payment of the inheritance tax and gift tax, the average value of such appraisal

3. Where there is a fact of expropriation, auction or public sale of the property concerned, the amount of compensation, the amount of auction or public sale;

C. Determination

According to Article 60 (1) and (2) of the Inheritance Tax and Gift Tax Act and Article 49 (1) 3 of the Enforcement Decree of the same Act, the value of property on which inheritance tax or gift tax is levied shall be based on the market price as of the date of commencing the inheritance or the date of donation (hereinafter referred to as the "date of appraisal"), and the market price in this context shall be the value which is generally deemed to be established when free transactions are made between many and unspecified persons, and if an auction or public sale is made under the Civil Procedure Act during the period of report on the tax base of inheritance or report on the tax base of gift tax from six months before the date of appraisal (three months in the case of donated property) to the period of report on the tax base of inheritance or report on the tax base of gift

Comprehensively taking account of the overall purport of the pleadings in each of the statements in Eul evidence Nos. 1-1 through 5, Eul evidence Nos. 2-2, and 3, it is recognized that on the seventh bidding date which was implemented on June 30, 1999, the ○○ was an employee of ○○ Factory Co., Ltd. and ○○○ Engineering Co., Ltd. at the time of the plaintiff’s ○○○○○○○○○○○○○○’s participation in the tender, which was the representative director, at the time of the public auction of this case. At the time of the plaintiff’s participation, the bid amount of ○○○○ was KRW 563,637,200 and the bid amount of Kim○○’s ○○ was KRW 563,637,100, both,

However, unlike the sale and purchase between general private parties, anyone can participate in the auction or public auction and participate in the auction or public auction, and in this case, it is limited to two persons who participated in the auction or public auction on the date of the auction or public auction, and there is no substantial free competitive bidding because there is a mutual agreement between the two persons to raise the bidding price in a certain amount, and if anyone intends to obtain the ownership of an object with the highest price, it cannot be an obstacle to the case where a free trade is made between unspecified persons.

Furthermore, the public auction price of this case is merely 50% of the initially estimated minimum sale price, and the value assessed by the defendant is not necessarily reflected in the appropriate market price of the pertinent property (if there are many temporary benefits at the time of the evaluation in question, it may be evaluated much higher than the actual value, and even if compared with the value assessed by the ○○○○○ Management Corporation, it shall be deemed to have reached about three times the actual value. In this case, in the case of an auction or public auction on unlisted stocks, there are no special circumstances, such as where the sale price or public auction is ordinarily reasonable annual dividends, or where the distribution market is formed and it is easy to be commercialized, a third party's acquisition of the auction price or public auction price may be different from the actual value, and in light of such time or circumstances, it is difficult to view that the above auction price or public auction price of this case was calculated based on the calculation basis of inheritance tax and gift tax base without any conditions in the relevant laws and regulations, the first sale price of this case cannot be deemed to have been determined by the ○○○○ Management Corporation as the first sale price of this case.

(d) Justifiable tax amount.

Therefore, the shares of this case should be assessed as KRW 7,115 per share, which is the above public sale price. Based on this, when calculating the plaintiffs' legitimate inheritance tax amount, the part of the disposition of this case in excess of the above amount is illegal.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified and it is so decided as per Disposition.