propriety of the disposition imposing gift tax on similar apartment business example

It is reasonable to regard the transaction value as the market price at the time of donation because the apartment is located in the same Dong and the same rank, the same direction, the immediately upper floor, the same standard market price, the area, location, purpose, and item are identical or similar to the same standard market price.

Article 60 (General Principles, etc. of Appraisal)

Article 49 (Evaluation Principles, etc.)

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 KRW 17,521,800 on November 13, 2007 against the Plaintiff on November 13, 2007 is revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry of Gap evidence 1, Gap evidence 2-1, Gap evidence 2-3, Eul evidence 1-1, Eul evidence 3, and Eul evidence 1.

A. On September 8, 2005, the Plaintiff donated ○○○○○○dong, Seoul, ○○○○ apartment, 212 Dong 208 (hereinafter “instant apartment”).

B. On September 23, 2005, the Plaintiff assessed the value of donated assets as KRW 147,50,000, which is the standard market price publicly notified by the Commissioner of the National Tax Service, and reported and paid KRW 17,500,000 to the Defendant.

C. As of September 8, 2005, the date of donation of the apartment of this case, the defendant confirmed that the 212-dong 303 apartment of the same area located in the same complex as the apartment of this case (hereinafter referred to as the "sale apartment of this case") was traded in 257,00,000 won on August 13, 2005, and applied Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") and Article 49(1) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, 257,00,000 won in sales price of the apartment of this case was calculated by considering the market price of the apartment of this case as the market price of the apartment of this case, and on November 13, 2007, the defendant issued a disposition of imposing additional tax on the plaintiff 17,521,800 won (including the "disposition of this case").

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In the evaluation of the market value of donated property, the similar transaction price among the methods of appraising the market value should be strictly applied not only to real estate but also to all kinds of property such as securities, intangible property rights, etc. In addition to apartment buildings, on the grounds that it is difficult for the tax authorities to find comparable property, such as commercial buildings, general houses, and land, which is the same as that of the appraised property, and it is against the principle of equity or the principle of tax equality among taxpayers.

(2) The Plaintiff filed a voluntary return and paid gift tax according to the standard market price on the ground that the market price or similar transaction price at the time when the gift tax was declared cannot be known, and thus, the Defendant’s disposition of this case and imposition of penalty tax also violates the legal stability of the taxpayer.

(3) The apartment of the sales case is three floors, and the apartment of the instant case is the second floor, and there is a string point that makes it difficult to use the elevator as a second floor, and it is difficult to use the elevator, and it is located outside of the building, and thus, is covered, sticked to the summer because the heat and flood control is not completely completed, and there is a kindergarten building on the rear side, and there is a lot of noise level disadvantageous and unfavorable to the view of the corridor, so it is unlawful to regard the sales case price of the apartment of the instant apartment as the market price of the instant apartment even though it did not perform internal repair such as the sales case.

(b) Related statutes;

Article 60 (General Principles, etc. of Appraisal)

Article 49 (Evaluation Principles, etc.)

(c) Fact of recognition;

The following facts are not disputed between the parties, or are recognized in full view of the entries and videos of evidence Nos. 6-2, 7-1 through 4, 1-1, 2, 2, 2, 3, 4-1, 2, 5, 5, 7, and 1-1, 2, 2, 3, 4-1, 4-2, 5, and 7, and there is no counter-proof.

(1) The transaction status of neighboring apartment units of the instant apartment

The apartment of this case was sold in KRW 257,00,000 on August 13, 2005, and the apartment of this case was sold in KRW 257,00,000 on August 28, 2005, and the apartment of this case was traded in KRW 220,000-260,000 on September 5, 2005.

(2) The current status of the apartment in this case and the apartment in sales cases

(A) The instant apartment is a hallway-type apartment, located at the edge of a corridor, and its rear side is a kindergarten building with a height of 3 to 4 floors.

(B) The apartment of the sales case is located in the same Dong as the apartment of this case, the area is equal to that of this case, the standard market price is equal to the standard market price, and the next side is anticipated to play.

(C) The above 216 Dong 301 is located at the end of the corridor as in the apartment of this case, and is the same area, and is also the standard market value.

(3) Additional tax

The Defendant did not impose the additional tax on negligent tax returns while rendering the instant disposition, and imposed the additional tax on negligent tax (i.e., the amount of tax paid X3/10,000). However, when the Plaintiff raised an issue as to whether the notice of tax payment was served directly, the number of unpaid days was calculated only 340 days.

D. Determination

(1) Whether the principle of equity or the principle of tax equality is violated

If there is a normal transaction that is identical or similar to donated property, and the sales case reflects objective exchange values, it would be the most reasonable to evaluate the value of donated property at the market price: Provided, That this part of the plaintiff's assertion is without merit, since there are many real cases where gift tax is imposed on real estate, such as commercial buildings, general houses, and land, and other kinds of real estate except apartment buildings, because tax data on sales cases, etc. are not sufficiently accumulated, it is not the standard market price publicly notified by the Commissioner of the National Tax Service, but the actual transaction price is not the standard market price determined and publicly notified by the Commissioner of the National Tax Service, and the disposal of this case is in violation of the principle of equity or the principle of tax equality.

(2) Whether legal stability is infringed

In light of the fact that the market price under the Inheritance Tax and Gift Tax Act is, in principle, an objective exchange price formed through a normal transaction, and it is not a transaction price determined by a unilateral transaction. From the perspective of the taxpayer concerned, it cannot be said that it is impossible to confirm whether there is a sale or purchase of the same or similar property in the neighboring area, location, use and category, and that it is impossible to confirm the transaction price. In light of the above, Article 49(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act cannot be said to infringe on the legal stability of the taxpayer.

Furthermore, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed pursuant to the law in cases where a taxpayer violates the duty to report and pay taxes under the law without justifiable grounds and the taxpayer's intentional or negligent act is not considered, and the site of the law does not constitute justifiable grounds (see, e.g., Supreme Court Decision 93Nu20467, Aug. 26, 1994). In this case, it is difficult to view that the Plaintiff's failure to purchase or sell other apartment at the time of reporting and paying the gift tax of this case does not constitute a case where there is a justifiable reason for neglecting the Plaintiff's duty. Further, considering the purport that additional tax due to erroneous payment is calculated at a certain rate prescribed by Presidential Decree in consideration of the general interest rate of the financial institution, and that it is intended to confiscate the amount equivalent to the profit corresponding to the general interest rate of the financial institution that the Plaintiff could have obtained due to the delay in payment, even if the Plaintiff did not have any particular fault in the market price of this case.

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

(3) Whether the sales price was unfair or not

As seen earlier, as compared to the apartment of this case, although the number of floors is different from the apartment of this case, the apartment of this case's location is similar to that of this case's residential apartment of this case's location. The same area, purpose and issue are identical, and the apartment of this case's apartment of this case's apartment of this case's apartment of this case's donation is identical to the standard market price at the time of the donation 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'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 216 Dong 301, which is similar to the standard market price at the same time within 3 months of the donation of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's case's apartment of this case's sales case's 200 days of this case's apartment of this case'

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.