Seoul High Court 2007Nu32275 (Law No. 24, 2008)

National High Court Decision 2007No1062 (Law No. 28, 2007)

Whether the provision that the transaction value, etc. of similar property shall be deemed the market price violates the principle of no taxation without representation.

The provision that the transaction value, etc. of similar property shall be considered as the market price is clear as the scope of the market price stipulated by Article 60(2) of the Inheritance Tax and Gift Tax Act, which is the mother corporation, and it cannot be said that it violates the principle of no taxation without law or equality or goes beyond the bounds of delegated legislation.

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

쇠지지 개은은 3000 개은은은은은 3000 아은은은은은이 3000 아은이 아은이 3000 아은은은은 3000 이 이 3002008 85050

208du8512 (Joint) revocation of revocation of the imposition of gift tax

Z은300 possessing u3000 possessing u 3000 possessing u u 3000 Ya 2. Hab

흰지지300 쇠지지지 3000CC Head

Article 300 u300 u300 u300 n u3000 n u3000 Seoul High Court Decision 2007Nu32268, 3275 (Consolidated) decided April 24, 2008

쇠은은 개은은 개은은은 3000 개은은은 3000 아은은은이 이 3000 개이 이 300 개이 30010.

44 44 44 44 44 45 44 444 64 44

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

쇠鹬 쇠鹬 3000 쇠鹬 3000

We examine the grounds of appeal.

1. As to the appraisal of the value of donated property under the Enforcement Decree of this case

Article 60 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8139 of Dec. 30, 2006; hereinafter "the Inheritance Tax and Gift Tax Act") provides that "the value of the property on which inheritance tax or gift tax is levied shall be based on the market price as of the date on which the inheritance commences or the date of donation." Paragraph (2) of the same Article provides that "the market price under the provisions of paragraph (1) shall include the value which is generally accepted if free transactions are conducted between many and unspecified persons and which is recognized as the market price under the conditions as prescribed by the Presidential Decree, such as expropriation, public sale price, and appraisal price." In addition, the main sentence of Article 49 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18989 of Aug. 5, 2005; hereinafter "Enforcement Decree") provides that "the value of the property which is recognized as the market price according to the provisions of Article 60 (2) of the Act, such as expropriation price or sale price of the property shall be determined as follows:

As can be seen, Article 60 of the Inheritance Tax and Gift Tax Act declares the principle of market price in the evaluation of inherited or donated property under paragraph (1) and provides for the approximate standard that the market price is formed through general and normal transactions and that can be recognized as the market price on the premise that it properly reflects the objective exchange value. Accordingly, the provision on transaction price, etc. of the relevant property subject to taxation under each subparagraph of Article 49(1) of the Enforcement Decree is an example of representative cases that can be seen as the market price of inherited or donated property (see Supreme Court Decision 2000Du5098, Aug. 21, 2001). In addition, since Article 60(2) of the Inheritance Tax and Gift Tax Act does not limit only the transaction price, etc. of the relevant property subject to taxation to the market price, the provision on the transaction price, etc. of the relevant property identical or similar to the relevant property subject to taxation under paragraph (2) of the same Article does not violate the principle of no taxation without the law or the principle of no taxation without the law.

In the same purport, the court below is just in holding that the defendant's disposition of gift tax of this case, which assessed the value of donated property pursuant to the Enforcement Decree of this case, is legitimate, and there is no error of law such as

2. As to the additional tax portion

In order to facilitate the exercise of taxation rights and the realization of tax claims under the tax law, the taxpayer’s intention and negligence is not considered as administrative sanctions imposed in accordance with the law in cases where the taxpayer violates the reporting and tax liability under the law without justifiable grounds, and thus, the taxpayer’s intention and negligence cannot be deemed as constituting justifiable grounds (see, e.g., Supreme Court Decisions 2000Du5944, Apr. 12, 2002; 2005Du3714, Oct. 26, 2006).

In addition, the contents and purport of Article 78(2) of the Inheritance Tax and Gift Tax Act, along with the purport of the same Act, comprehensively taking account of the fact that the additional payment for the gift tax is a financial benefit for the amount that has not been paid by the due date for the return and payment, and that it is an administrative sanction against the violation of the obligation to pay the gift tax, even if the amount is not paid due to a difference in the appraisal of the value of the donated property, it cannot be deemed that the subject of the additional payment for the additional tax is excluded from the subject of the imposition, and there is no justifiable reason for the payment of the amount below the due date (see, e.g., Supreme Court Decision 96Nu16

In the same purport, the court below's rejection of the plaintiffs' assertion that imposing penalty tax for failure to report or failure to pay is illegal, and there is no error of law such as misunderstanding of legal principles as to penalty tax for failure to report or failure to pay in good faith.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.