The value of the leased portion shall be assessed as the larger amount between the conversion value of rents, etc. and the standard market value, and the unleased portion shall be assessed as the standard market

Where part of a building, which is an inherited property, is not leased but partially leased, the value of the leased part between the leased part and the non-leased part shall be appraised by the larger amount between the value of rent, etc. and the standard market price, and the value of the leased part shall be assessed as

Article 61 of the Inheritance Tax and Gift Tax Act

2014Guhap65783 Revocation of Disposition of Levying Inheritance Tax

AA

BB Director of the Tax Office

December 12, 2014

January 13, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 00,000,000 against the Plaintiff on February 4, 2014 is revoked.

1. Details of the disposition;

A. On May 4, 2012, the net CCC (hereinafter “the decedent”) died on May 4, 2012, and the decedent’s inherited property had the financial property and the six-story neighborhood living facilities and housing (hereinafter “the instant building”) located in 0-ro, Seoul Special Metropolitan City, Nowon-gu.

B. The instant building is a neighborhood living facility and a house of the sixth floor above the ground level. From the first floor above the ground level to the fifth floor above the ground level (hereinafter referred to as the “base area”), the instant building was leased to a third party as a commercial building, and the 6th floor above the ground level (hereinafter referred to as the “housing section”) was living together with the decedent and the Plaintiff. The converted value of rent, etc. calculated pursuant to Article 61(5) of the Inheritance Tax and Gift Tax Act and Article 50(7) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is KRW 0,000,000 for the portion among the instant building. The individual housing price of the housing portion among the instant building is KRW 00,000,000.

C. The Plaintiff, as the spouse of the inheritee, succeeded to the inherited property of the inheritee, assessed the conversion price of the rent, etc. for the commercial building of this case among inherited property to KRW 0,000,000,000, and reported and paid KRW 00,000 as inheritance tax.

D. After conducting an inheritance tax investigation on the decedent, the Defendant recognized the assessment of the instant building as it is and confirmed the remaining financial assets omitted, and corrected and notified the inheritance tax amount of KRW 0,000,000 by recalculation the inherited property.

E. In evaluating the value of the building of this case among the inherited property by the Defendant’s regular business audit against the Defendant, the director of the Seoul Regional Tax Office stated that the housing portion was KRW 00,000,000,000, which is the individual housing price, and that the converted value, which is the larger of the converted value of the standard market price, rent, etc., was omitted even though the commercial part was assessed respectively.

F. Accordingly, on February 4, 2014, the Defendant re-calculated the inherited property by increasing the appraised value of the instant building in KRW 000,000,000, and thereafter, on February 4, 2014, issued an additional correction and notification of KRW 00,000 as to the Plaintiff (hereinafter “instant disposition”).

G. The Plaintiff dissatisfied with the instant disposition and filed an appeal on March 17, 2014, but the Tax Tribunal dismissed the Plaintiff’s appeal on June 3, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1 and 3, all pleadings

Purport

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In assessing real estate, where a lease contract has not been registered separately by floor and unit, the larger amount of the value assessed as prescribed by Article 50(7) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter referred to as “the conversion value of rent, etc.”) and the value assessed as prescribed by Article 61(1) through (4) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as “standard market value”) should be assessed as the value of the pertinent real estate, including the portion not used or leased by itself for the entire land and building including the portion not leased by it. If the value of the pertinent building is assessed as the conversion value of rent, etc., a part of the registered property shall be assessed as the standard market value, and if it is assessed as the conversion value of rent, etc., the tax authorities may impose taxes at will, and thus, it violates the principle of no taxation without the law and special law. In this case, the conversion value of the portion of the instant building (including individual house ownership of the building concerned), the conversion value of rent, etc. 00,000 won,000 won for the instant building.

(2) Although the Defendant expressed a public view that “in the event that a sectional registration has not been made through the established rules and inquiries, the conversion price of rent, etc. and the amount of the standard market price of the land and the entire building (including the area not used or leased by himself) shall be the value of the pertinent real estate.” However, the instant disposition assessed the portion of the instant real estate as the standard market price, and the remaining portion as the conversion price of rent, etc., which is contrary to the principle of good faith.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the Plaintiff’s first argument

Article 61(5) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 12168, Jan. 1, 2014; hereinafter "the Inheritance Tax and Gift Tax Act") provides that "in cases of an asset for which a de facto lease contract is concluded or for which a right of lease is registered, the larger amount of the assessed value based on the rent, etc. as prescribed by Presidential Decree and the appraised value under paragraphs (1) through (6) shall be the value of the relevant property." Article 50(7) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act delegated by it refers to the amount calculated according to the following formula (hereafter in this Article, the converted value of rent, etc. ± the rate of rent, etc. ± the rental deposit) + the rental deposit. The legislative purport of each provision is to determine the rental deposit or monthly rent within the scope of the objective exchange value of the relevant asset, and thus, to calculate the most adjacent value of inherited or donated property in accordance with Article 61(5) of the Inheritance Tax and Gift Tax Act:

As can be seen, the provision of Article 50(7) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act on the evaluation of inherited property is stipulated in the purport of approaching the principle of market value under Article 60(1) of the Inheritance Tax and Gift Tax Act on the evaluation of inherited property pursuant to Article 61(5) of the Inheritance Tax and Gift Tax Act. Thus, in a case where a part of a building, which is an inherited property, is leased or partially not leased, the value of the former shall be assessed by the method under Article 61(5) of the Inheritance Tax and Gift Tax Act, and Article 50(7) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the value of the latter shall be assessed by the method under Article 61(1) of the Inheritance Tax and Gift Tax Act, and Article 50(1) through (6) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act on the evaluation

According to the above facts, the commercial part of the building of this case was leased to a third party, and the plaintiff used the commercial part of the building of this case. According to the above legal principles, the leased commercial part of the building of this case is assessed as KRW 0,000,000,000, which is the larger of the converted value of the standard market price and rent according to the method stipulated in Article 61(5) of the Inheritance Tax and Gift Tax Act and Article 50(7) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. The non-leased part of the building of this case should be assessed as KRW 00,000,000,000 in individual housing price pursuant to Article 61(1)4 of the Inheritance Tax and Gift Tax Act. Thus, the appraised value of the building of this case is assessed as KRW 0,000,000 (=0,000,0000 + KRW 00,0000,0000).

Therefore, the disposition of this case which assessed the building of this case by such a method is legitimate, and the disposition of this case cannot be deemed to violate the principle of no taxation without the law or the special law, and thus, the plaintiff's above assertion is

(2) As to the second argument of the Plaintiff

The principle of trust and good faith, the principle of protecting trust, and the principle of respect for non-taxable practices in tax and legal relations are exceptional legal principles applicable only to cases where there are special circumstances deemed that the protection of taxpayer's trust is consistent with the justice even if the principle of legality is sacrificed (see, e.g., Supreme Court Decision 2002Du11233, Jul. 22, 2004). Therefore, in order to apply the principle of trust and good faith or the principle of protection of trust to a tax authority's acts, average taxpayers whose trust granted by the tax authority through a public opinion statement, etc. should have a reasonable and justifiable expectation. Although the tax authority expressed a certain opinion through a questioning reply, if it is followed by questioning without revealing the important facts and legal issues, it cannot be deemed that there is a case where there is a trust that can have a legitimate expectation by a public opinion statement that is given by the public opinion statement.

According to each statement of Gap, Gap, 4, 5, and 6 (including branch numbers) on this case, when the National Tax Service conducts a de facto lease contract several times after January 27, 2005, it is not registered separately on each floor and unit. If it is not registered separately, it is evaluated as a larger amount between the conversion price of deposits, etc. for the entire land and buildings (including the area not used or leased by itself) and the standard market price, and the contents of the reply are deemed to have been recorded on the teaching materials, etc. for public officials issued by the National Tax Service. However, it is difficult to view that there is no reasonable and reasonable view that the above legal principles were presented by the taxpayer, since it is difficult for the tax office to evaluate and evaluate the leased portion as the standard market price, as the value of the leased portion and the amount not leased portion as the standard market price.

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.