Cho High Court Decision 2008west089 (No. 28, 2008)

Whether the imposition of gift tax by business example violates the taxation requirements, the identification principle, and the tax equality principle.

The imposition of gift tax by deeming transaction example as the market price is legitimate because it is not possible to confirm transaction example of similar property from the viewpoint of the taxpayer, because it is impossible to confirm transaction example of similar property by eliminating unreasonable points that are not recognized as the market price even though there is a transaction example price of similar property.

The contents of the decision shall be the same as attached.

Article 49(5) of the Enforcement Decree of the 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 imposition of gift tax of KRW 185,619,200 against the Plaintiff on December 1, 2007 is revoked.

1. Details of the imposition;

A. On April 14, 2005, the Plaintiff received the registration of ownership transfer on April 12, 2005, with respect to ○○○○○○○○○○○○○○○ apartment (174 square meters; hereinafter “the apartment of this case”) 506, ○○○○○○○○○○○○○○○○○○, dong on April 14, 2005. However, on July 12, 2005, the Plaintiff assessed the amount of KRW 1,32,00,00, which is the standard market value publicly notified by the Commissioner of the National Tax Service to the Defendant of the donated property of the apartment of this case, as the sum of KRW 2,061,437,541 (1,32,00,000, +729,437,541 won) as the donated property of this case, and reported and paid KRW 9,597,970,97,541.

C. On or before April 12, 2005, the date of donation of the apartment of this case, the Defendant investigated the sales cases of nearby apartment houses for three months before or after the date of the donation, and as a result, it revealed that the same Dong, the same direction, and the same area as the apartment of this case, the apartment of ○○○○ apartment of this case (hereinafter referred to as “○○○○”) was transacted with the other ○○○○ apartment of this case on March 16, 2005, and the value of donated apartment of this case was 1,70,000,000 won. The Plaintiff received a decision to dismiss the gift tax of this case as KRW 60(1) and (2) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8139, Dec. 30, 206; hereinafter referred to as “the Act”), and received a request for a judgment on imposition of additional tax of KRW 20,000 (amended by Presidential Decree No. 18989, Aug. 5, 20005). 100).

[Reasons for Recognition] Facts without dispute, Gap 1 through 3 evidence, Eul 1-2, Eul 3-1 to 5, Eul 4-1, 2, Eul 5 through 7 evidence, Eul 10, and the purport of the whole pleadings

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

(1) Article 49(5) of the Enforcement Decree of the Act is null and void for the following reasons, and thus, the instant disposition of taxation is unlawful.

"㈎ 납세의무자에게는 조사권이 없어서 증여재산과 면적, 위치, 용도, 종목 등이 동일하거나 유사한 다른 재산(이하다른 재산'이라 한다)의 거래가액을 파악한다는 것은 불가능하여 과세요건 실현 당시 조세부담의 정도를 미리 예측할 수 없음에도 불구하고 다른 재산의 거래가액을 증여재산의 시가로 본 법 시행령 제49조 제5항은 헌법에서 정한 조세법률주의상 과세요건명확주의 원칙에 위배된다.",㈏ 법 시행령 제49조 제5항의 규정에 의하면, 같은 증여재산이라도 증여 전후 3개월 이내의 기간 중에 매매사례가 있다는 우연적인 사실에 따라 증여재산의 시가가 달라지게 되고, 증여재산으로 큰 평형과 작은 평형의 아파트가 있는 경우 작은 평형의 아파트만 증여 전후 3개월 이내의 기간 중에 매매사례가 있다면, 작은 평형의 아파트가 큰 평형의 아파트보다 더 많은 조세를 부담하게 되는 결과가 발생하는바, 이는 합리적인 이유 없이 특정의 납세의무자를 불리하게 차별하는 것으로서, 헌법상 조세평등주의 원칙에 위배된다.

Shebly viewed otherwise, even if there are justifiable grounds for taxpayer’s failure to perform his/her duty, no additional tax may be imposed. The Plaintiff’s failure to verify the actual sale cases and transaction value of the apartment similar to the apartment of this case by the time the gift tax return and payment is filed, and therefore, the Plaintiff’s failure to pay the gift tax is deemed to have justifiable grounds for neglecting tax liability.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(i) Whether Article 49(5) of the Enforcement Decree of the Act is null and void.

㈎ 과세요건명확주의 원칙 위반 여부

In light of the following circumstances: (a) the market price, which is considered as the criteria for the appraisal of donated property under Article 60(1) and (2) of the Act, is, in principle, premised on the objective exchange price formed through a normal transaction; (b) the purpose of legislation under Article 49(5) of the Enforcement Decree of the Act is to resolve unreasonable means that the market price of the pertinent property is actually identical or similar to the pertinent property in calculating the market price of the donated property; (c) it is difficult to understand its meaning in light of the following factors: (a) whether there is a transaction of the property identical or similar to the pertinent property; (b) whether there is a transaction price of the property; and (c) whether there is a transaction price of the property that is not identical or similar to the pertinent property; and (d) whether there is a transaction price of another property that is not identical or similar to the said property; and (d) it cannot be deemed practically impossible to confirm such transaction price from the standpoint of the taxpayer.

㈏ 조세평등주의 원칙 위반 여부

As seen earlier, in calculating the market price of the donated property, the above provision is not an unreasonable means to realize the principle of substantial taxation by resolving unreasonable points that do not recognize it as the market price, even though there are cases of selling and selling other properties in fact identical or similar to the pertinent property, and it is not an unreasonable means to apply as the standard of legislative intent. In addition, if there is a sale case of other properties identical or similar to the donated property, and if the sale case, etc. reflects objective exchange values, it is more reasonable to evaluate the value of donated

Therefore, solely on the ground that the transaction case was conducted within three months before and after the donation, taxation on a person who meets the taxation requirements cannot be deemed as unreasonable discriminatory taxation. Therefore, it cannot be deemed as a violation of the principle of tax equality.

In addition, a case subject to Article 49(5) of the Enforcement Decree of the Act and a case subject to Article 49(5) of the Act is a prerequisite for examining whether the principle of equality is violated under the Constitution and cannot be deemed as a essentially identical compared group. Thus, a case where there was no transaction case during a period of three months before or after the donation and there was no transaction case during the period of three months before or after

㈐ 소결

Therefore, the plaintiff's assertion that Article 49 (5) of the Enforcement Decree of the Act is dangerous is without merit.

She Whether the penalty part of this case is illegal or not

"㈎ 법 제78저 제2항에 의하면, 세무서장 등은 법 제70조의 규정에 의하여 납부할 세액을 신고기한 이내에 납부하지 아니하였거나 제76조의 규정에 의하여 결정한 과세표준에 의하여 납부하여야 할 세액에 미달하게 납부한 때에는 납부하지 아니하였거나 미달하게 납부한 세액에 자진납부일 또는 고지일까지의 기간과 금융기관이자율을 감안하여 대통령령이 정하는 율을 곱하여 산출한 금액을 산출세액에 가산하며, 법 시행령 제80조 제4항은 법 제78조 제2항에서대통령령이 정하는 율'이라 함은 매 1일당 1만분의 3을 말한다고 규정하고 있다.",㈏ 위와 같이 납부불성실가산세는 납세의무자로 하여금 성실하게 납부하도록 유도하고, 그 납부의무의 이행을 확보함과 아울러 신고납부기한까지 미납부한 금액에 대하여는 금융혜택을 받은 것으로 보아 그 납부의무 위반에 대하여 가하는 행정상 제재인 점 등을 종합하여 보면, 신고기한 이내에 증여재산을 신고하였으나 그 평가상의 차이로 인하여 미납부한 세액이라고 하더라도 납부불성실가산세의 부과대상에서 제외된다고 할 수는 없고, 증여재산의 평가방법과 다른 재산의 가액으로 시가가 산장된다는 사실을 알지 못하여 증여재산가액을 과소신고하였다는 사정은 단순한 법률의 부지나 오해에 불과하여 납부불성실가산세를 면제할 정당한 사유가 있는 경우에 해당한다고 볼 수도 없다(대법원 1998. 11. 27. 선고 96누16308 판결, 2000. 10. 10 선고 98주13546 판결 등 참조).

3. Conclusion

Therefore, the defendant's disposition of this case is legitimate, and the plaintiff's claim is groundless, and it is decided as per Disposition by the assent of all participating Justices.