[1] Whether Article 9 (4) 1 of the former Inheritance Tax Act is unconstitutional (negative), and whether Article 5-2 subparagraph 3 of the former Enforcement Decree of the Inheritance Tax Act violates the parent law (negative)

[2] Whether Article 9 (4) 1 of the former Inheritance Tax Act and Article 5-2 subparagraph 3 of the former Enforcement Decree of the Inheritance Tax Act may apply mutatis mutandis to the valuation of values under Article 9 (4) 1 of the former Inheritance Tax Act and Article 5-2 subparagraph 3 of the former Enforcement Decree of

[3] In the appraisal of inherited property on the mortgaged real estate, the person who is liable for assertion and proof as to the fact that the appraised value of the pertinent property was assessed more than the market value (=taxpayer)

[4] The scope of the reported tax base under Article 20-2 (1) of the former Inheritance Tax Act

[1] Article 9(4) of the former Inheritance Tax Act (amended by Presidential Decree No. 4805 of Dec. 22, 1994) and Article 5-2 subparag. 3 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14469 of Dec. 31, 1994) provide that the purpose of calculating the value higher than the market price by supplementing Article 9(1) of the former Inheritance Tax Act (amended by Presidential Decree No. 4805 of Dec. 22, 1994), which provides for the principle of market value with respect to the evaluation of the value of inherited property, shall not be deemed to violate the above provision, and thus, Article 5-2 subparag. 4 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 1469 of Dec. 31, 1994) provides that the value of the pertinent property shall not be deemed to be more than the market price of the inherited property, and Article 5-2 subparag. 94 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 1949484 of Dec. 194.

[2] General Rule 399 of the former Inheritance Tax Act (amended by Presidential Decree No. 14469 of Dec. 31, 1994) provides for the scope of deeming a market price as the market price under Article 5 (1) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14469 of Dec. 31, 1994). General Rule 609 of the former Inheritance Tax Act (amended by Presidential Decree No. 25 of Feb. 25, 1998) provides for the definition of a reliable appraisal institution. Thus, Article 9 (4) 1 of the former Inheritance Tax Act (amended by Act No. 4805 of Dec. 22, 1994), Article 5-2 subparagraph 3 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 1469 of Dec. 31, 194) shall not be applied by analogy to the appraised value of inherited property.

[3] Where the value of the pertinent property at the time of establishing a right to collateral security under Article 9(4)1 of the former Inheritance Tax Act (amended by Act No. 4805 of Dec. 22, 1994) and Article 5-2 subparag. 3 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14469 of Dec. 31, 1994), if the value of the pertinent property is higher than the actual market value of the relevant inherited property, the above provision does not apply, and the market value becomes the value of the inherited property. Thus, the taxpayer is liable to assert and prove that the value of the pertinent property has been higher than

[4] Article 20-2 (1) of the former Inheritance Tax Act (amended by Act No. 4805 of Dec. 22, 1994) provides that 10/100 of the amount calculated by applying the provisions of Article 14 to the reported tax base shall be deducted from the amount calculated by deducting the following amount of the reported tax from the amount of the inheritance tax calculated pursuant to the provisions of Article 14. subparagraph 1 provides that the amount of the deferred tax collected pursuant to the provisions of Article 8-3 shall be deducted from the amount of the inheritance tax calculated pursuant to the provisions of this Act or other Acts, and subparagraph 2 provides that the amount of the deferred tax shall be deducted from the amount of the inheritance tax calculated pursuant to the provisions of Article 20-2 (1) of the former Inheritance Tax Act (amended by Act No. 4805 of Dec. 22, 1994). The tax base which becomes the basis of the reported tax credit pursuant to the provisions of Article 20-2 (1) of the same Act shall not mean the amount of the reported property.

[1] Article 9(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4805, Dec. 2, 1994); Article 66 subparag. 1 of the current Inheritance Tax and Gift Tax Act (see Article 60 of the current Inheritance Tax and Gift Tax Act); Article 5-2 subparag. 3 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1469, Dec. 31, 1994); Article 23 and 75 of the Constitution / [2] Article 9(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4805, Dec. 22, 1994); Article 9(4)1 of the former Inheritance Tax and Gift Tax Act (see Article 66 subparag. 1 of the current Inheritance Tax and Gift Tax Act); Article 5-2 subparag. 9 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (see Article 96(1) of the current Inheritance Tax and Gift Tax Act)

[1] [3] Supreme Court en banc Decision 91Nu2137 delivered on March 23, 1993 (Gong1993Sang, 1312), Supreme Court Decision 97Nu8366 delivered on December 26, 1997 (Gong1998Sang, 544) Supreme Court Decision 97Nu1679 delivered on June 23, 200 (Gong200Ha, 1774)

Plaintiff 1 and three others (Attorney Shin Jae-seok, Counsel for the plaintiff-appellant)

Head of the Tax Office

Seoul High Court Decision 96Gu44022 delivered on February 24, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

1. On the first ground for appeal

A. Article 9(4) of the former Inheritance Tax Act (amended by Act No. 4805, Dec. 22, 1994; hereinafter the same) and Article 5-2 subparag. 3 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14469, Dec. 31, 1994; hereinafter the same) provide that the assessment of the value of inherited property shall be based on the provision of Article 9(1) of the former Inheritance Tax Act, which provides for the principle of market value, to calculate the value adjacent to the market price. Thus, where it is proved by the taxpayer that the assessment of the value of the relevant property was higher than the market price at the time of establishing a collateral security right pursuant to Article 5-2 subparag. 3 of the former Enforcement Decree of the Inheritance Tax Act, if the above provision is not applicable and the market price becomes the value of inherited property (see, e.g., Supreme Court en banc Decision 91Nu2137, Jun. 23, 2000).

The judgment of the court below to the same purport is just, and there is no violation of the Constitution, the principle of market price, and the violation of the parent law as otherwise alleged in the ground of appeal. The ground of appeal on this part is without

B. General Rule 399 of the former Inheritance Tax Basic Rules (amended by February 25, 1998) provides the scope of the market value under Article 5(1) of the former Enforcement Decree of the Inheritance Tax Act. General Rule 609 of the former Inheritance Tax Basic Rules (amended by February 25, 1998) provides for the definition of a reliable appraisal agency under the above General Rule. Thus, the appraisal value shall not be applied by applying mutatis mutandis the appraisal value to the inherited real estate subject to a right to collateral security under Article 9(4)1 of the former Inheritance Tax Act and Article 5-2(3) of the former Enforcement Decree of the Inheritance Tax Act as the appraised value of the inherited property.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the analogical application of the above general provisions as otherwise alleged in the ground of appeal. This part of the ground of appeal

C. According to the reasoning of the judgment below, the court below deemed that the defendant alleged that the non-party 1, an appraiser of 2,465 square meters of forest land and 2,465 square meters and 3 lots (hereinafter referred to as "real estate located in ○○○ Dong") was an appraisal business entity under the Public Notice of Values and Appraisal of Lands, etc. Act under Article 5-2 subparagraph 3 of the former Enforcement Decree of the Inheritance Tax Act, and based on the evidence duly admitted, the non-party 1 was an appraisal business entity belonging to the appraisal office under the same Act. In light of the records, the above measures of the court below are acceptable and there is no violation of the principle of pleading and the rules of evidence

D. According to the reasoning of the judgment below, the court below held that the value of 436,768,400 won (the unit price of 1,050,000 won per piece of land) excluding the value of 9,450,000 won (the unit price of 1,050,000 won per piece of land) excluding the value of 436,768,40 won (the unit price of 446,218,409,450,000 won) excluding the value of 1,450,000 won (the unit price of 1,050,000 won per piece of land) excluding the real estate located in Seocho-dong and each ground building (hereinafter referred to as "real estate located in Seocho-dong"), which is not owned by the deceased non-party 2 (hereinafter referred to as "the deceased non-party 2) in the real estate located in Seocho-dong, Seocho-gu, Seoul. In light of the records, the judgment below is without merit.

E. Article 9(4)1 of the former Inheritance Tax Act and Article 5-2 subparag. 3 of the former Enforcement Decree of the Inheritance Tax Act where the appraised value of the pertinent property at the time of establishing a collateral security right under Article 9(4)1 of the former Inheritance Tax Act and Article 5-2(3) of the former Enforcement Decree of the Inheritance Tax Act is larger than the actual market value of the relevant inherited property, and the market value is the value of the inherited property. Thus, the taxpayer is liable to assert and prove that the appraised value of the pertinent property has been appraised more than the market value (see, e.g., Supreme Court en banc Decision 91Nu2137, Mar. 23, 199

According to the reasoning of the judgment below and the record, each appraisal value at the time of establishing a collateral mortgage on the real estate located in ○○dong, the real estate located in △dong, the land located in Ansan-si, and the land area of 564.9 square meters (hereinafter “instant collateral mortgage real estate”) in Ansan-si, cannot be deemed to have been assessed more than the market value at the time of commencing the inheritance of this case. Thus, the appraisal value of the inherited property on the instant collateral real estate shall be based on each appraisal value higher than the value based on supplementary assessment

Although the reasoning of the judgment below is somewhat insufficient, the conclusion that evaluation of the inherited property of the instant collateral security should be based on each appraisal value for establishing the right to collateral security is justifiable, and there is no error in the misapprehension of legal principles as to the evaluation method of inherited property and burden of proof, as otherwise

In addition, the precedents cited by the plaintiffs in the grounds of appeal are different from this case. This part of the grounds of appeal is without merit.

2. On the second ground for appeal

A. According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment, and judged that each of the roads (road address 6 omitted) and (road address 7 omitted) in Gyeyang-gu (hereinafter referred to as "each of the roads of this case") around the roads of this case, even if the land category is a road, only a specific person who uses sports facilities, such as golf driving ranges and tennis stations, installed in part of the land around each of the roads of this case, including the deceased, can be used as a road for use by the general driving range, and the tennis court's decision is acceptable in light of the records, and there is no error in violation of the rules of evidence or incomplete deliberation as otherwise alleged in the ground of appeal. The ground of appeal on this part is without merit.

B. According to the reasoning of the lower judgment, the lower court: (a) premised on the premise that the value of each road of this case should be assessed by the supplementary assessment method; and (b) calculated the value of inherited property by KRW 28,591,500, and KRW 19.75,000,000,000,000,000,000,000,000,000,000,000,000.

However, according to the records, the defendant has assessed the market price of each of the roads of this case to the Dong-dong appraisal corporation during the proceeding of the lawsuit of this case retroactively, and assessed the market price at the time of the commencement of the lawsuit of this case, and assessed the above ( Address 6 omitted), KRW 4,228,200 on the roads of this case, and KRW 571,30 on the roads of this case ( Address 7 omitted) on August 5, 1998 according to the market price report. Thus, as long as the defendant calculated the value of each of the roads of this case according to the appraised value, the court below should first determine whether the appraised value of each of the

Nevertheless, the lower court determined that the value of the inherited property should be calculated by the supplementary assessment method without making a determination as to whether the above appraisal value falls under the market price, thereby misapprehending the legal doctrine on the assessment method of the value of the inherited property of each of the instant roads, thereby adversely affecting the conclusion of the judgment. The allegation in the

3. On the third ground for appeal

Article 20-2 (1) of the former Inheritance Tax Act provides that 10/100 of the amount calculated by applying the provisions of Article 14 to the reported tax base by the person who files a return within the reported period pursuant to the provisions of Article 20 (1) (hereinafter referred to as the "reported amount of tax" in this Article) shall be deducted from the assessed amount of inheritance tax, and subparagraph 1 of Article 8 provides that the amount for which collection is deferred pursuant to the provisions of Article 8-3 shall be deducted from the assessed amount of inheritance tax and subparagraph 2 of Article 20-2 shall be deducted from the assessed amount of inheritance tax pursuant to the provisions of this Act or other Acts and subordinate statutes. Thus, the reported tax base, which serves as the basis for calculating the reported amount of tax pursuant to the provisions of Article 20-2 (1) of the former Inheritance Tax Act, shall be the amount calculated by subtracting

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of the legal principles as to inheritance tax credit as otherwise alleged in the ground of appeal. This part of the ground of appeal is without merit (However, in calculating the amount of spouse deduction, the marriage year means only the period of legal divorce (see Supreme Court Decision 98Du8360, Sept. 3, 199). The court below points out that the difference between the reported amount of spouse deduction, which is the excessive reported amount due to the error in the calculation of reported tax credit, among the reported tax credit calculated by mistake of the amount of spouse deduction (see Supreme Court Decision 98Du8360, Sept. 3, 199).

4. On the fourth ground for appeal

A. According to the reasoning of the lower judgment, in calculating the additional tax on negligent tax returns, the lower court only determined that the sum of KRW 12,00,000,000, and KRW 139,917,560, and personal business debts which are the deductible amount, and KRW 59,720,973, as well as KRW 211,638,533, which are the deductible amount.

Therefore, the allegation in the grounds of appeal on this part that calculated the additional tax on negligent tax returns, including the erroneous assessment of the value of each of the issues of this case's real estate and the inheritance value on roads located in the city of Busan-dong, is without merit.

B. According to the reasoning of the lower judgment, the lower court determined that the calculated tax amount was KRW 769,909,89,891,957, the reported tax base was KRW 1,109,547,477, the reported tax base was KRW 211,638,533, and the calculated tax amount was 71,675,129 x 211,638,6333 / the determined tax base 1,909,891,957 x 20/100 x 17,102,139 for negligent tax returns by the formula of 20/100.

However, the additional tax on negligent tax returns shall be calculated based on the calculated tax amount. In calculating the additional tax on negligent tax returns, it is clear that the court below calculated the calculated tax amount based on the amount of 769,945,978 won, not 771,675,125 won. Thus, the court below erred by misapprehending the legal principles on the additional tax on negligent tax returns, which affected the conclusion of the judgment. The ground of appeal on this part is with merit.

5. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)