early 201J 2547 ( November 15, 2011)

It shall not be deemed that the right to acquire real estate in the right to live in the redevelopment of real estate is included and constitutes an inherited property separately.

Since the ownership of real estate was expected to be exchanged and changed to another real estate in the future in accordance with the management and disposal plan, it cannot be viewed that the right to acquire real estate in the redevelopment right for real estate can not be deemed to constitute an inherited property separately, and roads with no value of property are excluded from the inherited property.

2012Guhap572 Revocation of Disposition of Levying Inheritance Tax

000 00 000

Head of the High Tax Office

September 25, 2012

November 13, 2012

1. On January 3, 2011, the part of the disposition imposing inheritance tax amounting to the Plaintiffs, which exceeds KRW 000,000, 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;

A. The Plaintiffs are the spouses and children of Nonparty DaD (hereinafter “the deceased”) who died on April 29, 2009.

B. The plaintiffs, among the deceased's inherited property on October 30, 2009, are 00-13,00-38, Yongsan-gu Seoul Metropolitan Government OOdong, and 00-38.

00 won in total, and 000 won in total, of the values of the land and its ground buildings (hereinafter referred to as "OO-owned real estate"), 000 won in Seoul Special Metropolitan City, Nowon-gu, Seoul, and 000, and 000 won in total, which are roads according to the land category, have been reported and paid 00 won in voluntary payment of 00 won in total.

C. However, unlike the plaintiffs' above report, the defendant, on the premise that ① the value of OO's real estate in consultation with the Deliberation Committee on the Evaluation of Unlisted Stocks of the Central Tax Office (hereinafter referred to as the "Deliberation Committee on Evaluation of Unlisted Stocks") was 000 won in total, which is the base value of the above real estate (hereinafter referred to as "the appraisal value of this case"), and ② on March 14, 2008, the right to occupy O's real estate in accordance with the Urban Environment Improvement Plan in Zone Four of OO-dong, approved on March 14, 2008 (hereinafter referred to as the "Management Plan in this case") to acquire real estate in accordance with Article 61 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 201; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") constitutes "right to acquire real estate in accordance with the above Management Plan, and the plaintiffs' right to acquire real estate as 00 won or 200 won in fact were reported.

D. After that, the defendant reduced 00 won of the above inheritance tax ex officio (the disposition of this case is hereinafter referred to as "the disposition of this case").

[Ground of recognition] The non-satched facts, Gap evidence 3, 5, Eul evidence 1, 2, 4 through 6, and 8 (including household numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The Defendant recognized the instant appraisal value as the market price of the O-owned real estate, but the said appraisal value was not prepared within 6 months before or after the appraisal base date, and it cannot be deemed that there was no special circumstance of price fluctuation in the O-owned real estate after the preparation of the said appraisal report. Thus, the Defendant’s disposition that deemed the said appraisal value as the market price of the O-owned real estate was unlawful.

2) Only with the approval of the instant management and disposition plan, the right to live in redevelopment on the OO-owned real estate does not constitute "the right to acquire real estate" under Article 61 of the former Inheritance Tax and Gift Tax Act, and thus, the prior Defendant's disposition was unlawful on a different premise.

3) OO-owned real estate is de facto road and its value should be assessed as 0 won.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Whether the appraisal value of the instant case can be deemed as the market price of the O-owned real estate

A) Article 60(1) of the former Inheritance Tax and Gift Tax Act provides that the value of the property, which is the evaluation standard of inherited property, shall be the market price as of the commencement date of inheritance, and the "market price" under Article 60(2) of the same Act includes the expropriation and public sale price and appraisal price, as prescribed by Presidential Decree. In addition, Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 21641 of July 27, 2009, hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act") provides that the market price may be recognized in cases where the appraisal, public sale, etc. are conducted within six months before and after the base date of inheritance, and in cases where the appraisal, etc. does not fall under the evaluation period under the proviso, if it is deemed that there are no special circumstances, considering the change in the situation of the issuing company, passage of time, surrounding environment, etc., the relevant appraisal value may be recognized as the market price after consultation with the appraisal committee.

B) However, the following circumstances, which are acknowledged by comprehensively considering the overall purport of the arguments in Gap evidence Nos. 6 and 7, and Eul evidence Nos. 7 (including virtual numbers), are included in the urban improvement project on May 10, 2007, and the appraisal was used for the main complex construction since the appraisal was conducted on Oct. 10, 2007, and there were no other changes in the form of property, the status of use, and the surrounding environment. ② OOO real estate price and individual land price of the real estate are considered to have increased compared to the above appraisal report of this case, even if the appraisal price is deemed to be unfavorable to the plaintiffs, in light of the fact that the above appraisal price is not deemed to be the market price of OO real estate, and the statement No. 12 of evidence No. 12 cannot be deemed to have any special circumstance during the evaluation period from the date of preparation of the appraisal report of this case, and the appraisal price of this case can be deemed to have been appraised by objective and reasonable method.

C) Therefore, this part of the plaintiffs' assertion is without merit.

2) Whether the right to acquire real estate can be seen as “the right to acquire real estate” under Article 61 of the former Inheritance Tax and Gift Tax Act does not stipulate the right to acquire real estate under the former Inheritance Tax and Gift Tax Act. However, with respect to the right to acquire real estate under Article 61(5) of the former Inheritance Tax and Gift Tax Act, the value appraised by the method prescribed by the Presidential Decree in consideration of the remaining period, nature, content, transaction situation, etc. of the relevant right, and pursuant to Article 51(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the right to acquire real estate under Article 61(5) of the former Inheritance Tax and Gift Tax Act (including the right to acquire building and its appurtenant land at the time of completion of the construction) and the right to use specific facilities are based on the aggregate amount of money paid by the association members until the date of appraisal on the date of acquisition and disposal plan, and the right to acquire real estate can be seen as the right to acquire real estate under the previous management and disposal plan, such as the right to acquire real estate by means of exchange and public announcement of the ownership.

3) Whether OO real estate constitutes a de facto road

A) Article 60(1) of the former Inheritance Tax and Gift Tax Act provides that the value of the property on which the inheritance tax is levied under this Act shall be calculated on the market price as of the commencement date of the inheritance, and Article 60(3) of the former Inheritance Tax and Gift Tax Act provides that where it is difficult to calculate the market price in applying Article 60(1) of the former Inheritance Tax and Gift Tax Act, the value of the property shall be calculated on the basis of the method prescribed in Articles 61 through 65 of the former Inheritance Tax and Gift Tax Act, taking into account the type, size, transaction circumstances, etc. of the property, and accordingly, Article 61(1) of the former Inheritance Tax and Gift Tax Act provides that, if it is difficult to calculate the market price of the property on the land, it shall be calculated on the basis of the publicly announced individual land price under the Public Notice of Values and Appraisal of Real Estate Act (in case of an O-owned property without any separate appraisal date, the value of the inherited property at the time of commencement of inheritance shall be, in principle, calculated on the current market price of inheritance, and it shall be deemed that.

B) In light of the above legal principles, the land of 00 OOdong 00, Seoul Special Metropolitan City, Gwanak-gu among OOdong real estate is merely a dead-end road surrounded by three sides of housing, etc., and it is difficult to view this part of the plaintiffs' assertion as constituting a de facto road for many and unspecified persons. Therefore, this part of the plaintiffs' assertion is without merit, however, considering the overall purport of the arguments and images as a whole, among OOdong real estate, it is difficult to find that the land of 00, and 000 among OOdong real estate was used as a road abutting on the end of each of the above land and it is difficult to find that the road was used as a road by the neighboring residents, and it is difficult to find that there was no real value of each of the above land as at the time of commencing the inheritance, including the above land's shape or use, and there is no real value of each of the above land as at the time of commencing the inheritance.

C) Therefore, the plaintiffs' assertion on OO-dong 00 land among O-dong real estate in Seoul Special Metropolitan City is without merit, but the plaintiffs' assertion on the same 000 and 000 land is with merit.

4) Sub-committee

Therefore, the defendant's disposition of this case that held that the right to live in the redevelopment of OO-owned real estate is "the right to acquire real estate under Article 61 of the former Inheritance Tax and Gift Tax Act" and included separately in the inherited property, and that the appraised value of O-owned land exceeds "0 won" is illegal.

D. Scope of revocation

In a lawsuit for revocation of a tax disposition, the legality of the disposition is determined depending on whether it exceeds the reasonable tax amount, and the parties can submit objective tax base and materials supporting the tax amount until the closing of arguments in the court of fact-finding proceedings, and when calculating the legitimate tax amount to be lawfully imposed by these materials, only the part exceeding the legitimate tax amount should be revoked, and if not, the whole tax amount should be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995). However, the whole tax disposition of this case must be revoked in principle, because it is difficult to calculate the legitimate inheritance tax amount only with the litigation materials presented in the argument in the case, and as the plaintiffs seek partial revocation of the disposition in this case, the part exceeding 00 won in the disposition in this case should be revoked as the plaintiffs seek.

3. Conclusion

Then, the plaintiffs' claims of this case shall be accepted for all reasons, and they shall be decided as per Disposition.