The propriety of the main disposition of the retroactive appraisal value at the market price of an apartment by the court’s entrustment of appraisal

The appraised price of the apartment of this case on the basis of the above donation date by the court's entrustment of appraisal shall be deemed to be a proper price as of the donation date of the apartment of this case, since the selection of appraisal precedents and the time adjustment, the attendance expenses, and other factors correction, etc. which have been completed in the calculation process are all reasonable. Accordingly, according to this, the market price shall be deemed to be 752,00,000 won.

Article 60 of the Inheritance Tax and Gift Tax Act

1.The judgment of the first instance shall be modified as follows:

A. The Defendant’s disposition of imposition of gift tax amounting to KRW 76,903,90 against the Plaintiff on December 17, 2005, exceeding KRW 45,836,290, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The disposition of imposition of gift tax of KRW 76,903,990, which the defendant made against the plaintiff on December 21, 2005 (see, e.g., Supreme Court Decision 2003Do319, Dec. 17, 2005) is revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Details of the disposition;

A. On December 28, 2004, the Plaintiff reported and paid gift tax of KRW 639,000,000, which is the standard market price publicly notified by the Commissioner of the National Tax Service, on March 24, 2005, with the following terms: (a) ○○ Village ○○○○○○ apartment on a plot of land outside ○○○○○○○, ○○○○○○ apartment (hereinafter “instant apartment”); (b) 150,000,000,000 on the deposit money; and (c) 639,00,000,000, which is the standard market price publicly notified by the Commissioner of the National Tax Service.

B. On October 27, 2004, the Defendant stated that the same complex as the instant apartment complex, 1902, located in the same Dong (hereinafter referred to as “non-school apartment”) was sold in KRW 850,00,000 on October 27, 2004, and that the Plaintiff did not report totaling KRW 41,363,986, which was donated by his mother Kim○○ on June 30, 2003. The Defendant issued the instant disposition on December 17, 2005 by deeming the market price of the instant apartment as KRW 850,00,000, which is the market price of the relevant apartment, as KRW 76,903,90,090 (the amount of tax assessed) on the Plaintiff’s gift tax on December 17, 2005.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 3, Eul evidence 1 and 2

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In comparison with the apartment of this case, ○○ Dong, to which the apartment belongs, was located, has higher prices than the middle and low-class high-rises with high view and high-rises with high view, and in the case of comparative apartment, the apartment of this case was performed internal repair, including approximately KRW 100 million. On the other hand, in the case of the apartment of this case, the comparative apartment cannot be seen as similar to the apartment of this case, but it is unlawful that the defendant recognized the transaction value of the comparative apartment as it is at the market price of the apartment of this case and disposed of this case.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Whether the transaction value of the compared apartment can be seen as the market price of the apartment of this case

According to the evidence Nos. 5-1, 2, 3, and 6-2 of the evidence Nos. 6-2 and the appraisal commission with respect to the appraisal commission with respect to the appraisal commission with respect to the ○○○○○○○○○○ of this Court, the apartment complex of this case was the same complex as the apartment complex of this case; 1801, 150,000,000 won on March 7, 2005; 612,00,000, apartment house of this case; 576,00,000 won on December 1, 203; 1801,612,000,000 won on 639,000,000,000 won on 0,000 won on 1, 200,000 won on 1,000,000 won on 1,608,010,000 won on 2,005.

However, according to the statement in Eul evidence No. 5-1 and the above appraisal commission, the apartment house price is the same as the apartment house of this case in 'real estate bank' and 'dub apartment house'. The apartment house price is the same as 700,000,000 or 600,000,000 or 1,200,000 won, and the appraisal price of this case can not be determined differently from the above appraisal price of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case' of this case' of this 20,00,00,00, which is higher than the market price of this case's apartment of this case's apartment of this case's apartment of this case' of this case's apartment of this case' of this case' of this 20,000, the appraisal price of this case' of this case' of this case's apartment of this case's apartment of this case's apartment, apartment of this case's price of this case's appraisal.

D. Whether the retroactive appraisal value by the commission of appraisal by the court of this case can be deemed as the market price of the apartment of this case

The main text of Article 60(1) of the Inheritance Tax and Gift Tax Act (hereinafter “the Act”) provides that the value of property on which inheritance tax or gift tax is levied under this Act shall be deemed to be based on the market value as of the date of commencing the inheritance or of donation. Paragraph (2) of the same Article provides that “The market value under the provisions of paragraph (1) of the same Article shall include the value which is generally deemed to be established when free transactions take place between many and unspecified persons and which is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as the expropriation and public sale price and appraisal price.” Since the market value under the provision of Article 60(2) of the Act is not limited to those recognized as the market value under the conditions as prescribed by the Presidential Decree such as expropriation and public sale price and appraisal price, Article 49(1) of the Enforcement Decree by delegation of the above provision (amended by Presidential Decree No. 18177 of Dec. 30, 203. 1, 2005).

In light of the above legal principles, the appraised price of the apartment of this case on the basis of the above donation date by the appraisal commission of this court shall be deemed appropriate in all of the selection of the appraisal line, time adjustment, good faith, correction of other factors, etc., and it can be deemed as the market price as of the above donation date of the apartment of this case. Accordingly, its market price shall be recognized as KRW 752,00,000.

(e) Calculation of a legitimate tax amount;

If the fair market price as of the donation date of the apartment of this case is 752,00,000 won and the reasonable amount of gift tax is calculated, it shall be calculated as 45,836,290 (less than 10 won) as shown in the attached Table of Tax Calculation.

3. Conclusion

Therefore, since the part exceeding KRW 45,836,290 among the disposition of this case is unlawful, the plaintiff's claim of this case is accepted within the scope of the ground for revocation of the above part, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is partially different from this conclusion, the defendant's appeal is partially accepted and the judgment of the court of first instance is modified as above, it is so decided as per Disposition.

Relevant statutes

Inheritance Tax and Gift Tax Act

Article 60 of the Inheritance Tax and Gift Tax Act:

(1) The value of property on which inheritance tax or gift tax is levied under this Act shall be the market price as of the date of commencing an inheritance or of donation (hereinafter referred to as "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 under paragraph (1) shall be the price which is considered to be normal in the case of free trade between many and unspecified persons, and shall include the price of expropriation, public auction, appraisal price, etc. which is recognized as the market price under conditions

(3) In applying paragraph (1), where it is difficult to compute the market price, the price assessed by the methods prescribed in Articles 61 through 65 shall be based on the types, scale, transaction conditions, etc. of the relevant property.

Article 61 of the Inheritance Tax and Gift Tax Act: Appraisal of Real Estate

(3) Notwithstanding the provisions of paragraph (1), with respect to multi-family housing, officetels, and commercial buildings (including land annexed thereto) prescribed by Presidential Decree in consideration of the use, area, number of buildings partitionedly owned by a building and partitioned ownership, the value of the land and buildings shall be appraised at least once a year by the Commissioner of the National Tax Service based on the type, size, transaction status, location, etc. of the property, at least once a year.

Enforcement Decree of Inheritance Tax and Gift Tax Act

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

(1) For the purpose of Article 60 (2) of the Act, the term "those recognized as the market price, as prescribed by Presidential Decree, such as the expropriation or public sale price, the appraised price, etc." means the amount confirmed by the following provisions, where the sale, appraisal, expropriation, auction (referring to an auction under the Civil Execution Act; hereafter the same shall apply in this paragraph) or public sale (hereafter referred to as "sale, etc." in this paragraph) is made during a period of not more than six months (three months in the case of donated property; hereafter referred to as the "evaluation period" in this paragraph) before or after the evaluation base date, it shall be the amount confirmed by the following provisions:

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

2. In case where there exist the appraisal values appraised by the reliable appraisal institutions (hereinafter referred to as the “appraisal institutions”) prescribed by Ordinance of the Ministry of Strategy and Finance with respect to the relevant property (excluding the properties prescribed in Article 63 (1) 1 of the Act), the average value of such appraisal values: Provided, That in case where the relevant appraisal values fall short of 80/100 of the values appraised under Articles 61, 62, 64 and 65 of the Act (including the case where the value is deemed inappropriate in view of the purpose of appraisal, etc. after going through the appraisal deliberation committee pursuant to Article 56-2 (1) even if the relevant appraisal values are not less than 80/100, it shall be based on the values requested by the head of a tax office (including the head of a tax office, etc.; hereinafter referred to as the “head of a tax office, etc.”) to make an appraisal by another appraisal institution, but the same shall not apply:

(a) Values which are not suitable for the payment purpose of inheritance tax and gift tax, such as the assessment of relevant property on the condition that certain conditions are met;

(b) Value of the relevant property not appraised in the original form as of the standard date of appraisal;

(2) In applying the provisions of paragraph (1), whether a value under any subparagraph of paragraph (1) falls within six months (three months for donated property) before or after the evaluation base date, shall be determined based on the date stipulated in the following subparagraphs, and where a value deemed the market price under the provisions of paragraph (1) is two or more, the value falling under the date which is the nearest day before or after the evaluation base date shall

1. The sales contract date for the case of paragraph (1) 1;

2. In cases falling under paragraph (1) 2, the date on which a appraisal report is prepared;

(5) In applying the provisions of paragraph (1), where there exists a value falling under any of the subparagraphs of the same paragraph of the relevant property and the area, location, purpose of use and items of other property identical or similar, such value shall be deemed the market value under Article 60 (2) of the

2. A tax calculation table;

Justifiable tax amount (source)

Value of donated

602,000,000

The value of re-donation property;

41,363,986

Amount of gift tax

643,363,986

Gift Tax Deduction

30,000,000

Tax Base

613,363,986

Tax Rate

30%

calculated tax amount

124,009,196

Reporting Tax Credit

9,010,920

Amount of final tax

114,998,276

Additional Tax on negligent tax returns

2,284,620

Additional Dues

3,196,157

Total determined tax amount

120,479,053

Voluntary Tax Amount

74,642,759

Amount of tax notified after deduction

45,836,294