National High Court Decision 2007west 4883 (208.05)

The propriety of the disposition in this case at the market price of the donated property

Where there is a transaction example of an apartment that is traded within 3 months before and after the date of donation, and where there is the same or similar apartment with the donated apartment and the area, location, use, and item, it shall be deemed to be the market price and applied in preference

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

Article 60 (Principles, etc. of Appraisal)

Article 61 (Appraisal of Real Estate, 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 gift tax of KRW 15,052,450 against the plaintiff on August 1, 2007 is revoked (the plaintiff's " August 10, 2007" seems to be a clerical error in the statement of August 1, 2007)," and the reasons therefor.

1. Details of the disposition;

A. On November 22, 2006, the Plaintiff received 1/2 shares from ○○○○○○○○○○, Seoul, ○○○○○○○○○, ○○○○○○○○, ○○○○○, ○○○○, ○○○○, ○○○○, ○○○○, ○○○, ○○○, hereinafter “instant apartment”). On November 23, 2006, the Plaintiff completed the registration of ownership transfer on November 23, 2006 (hereinafter “instant shares”). However, when the Plaintiff reported and paid the gift tax following the donation of this case’s shares to the Defendant, the value of donated property is assessed as KRW 48,00,00,00, which is equivalent to the instant shares, KRW 1/24,00,000, KRW 350,000, KRW 100, KRW 400, KRW 700, KRW 500, KRW 200.

(C) As of November 23, 2006, the date of donation of the apartment of this case, as of November 23, 2006, the defendant investigated the sales case of nearby apartment of this case for three months before and after, that ○○○○ apartment of the same area located within the same complex as the apartment of this case (hereinafter referred to as the "Comparison apartment of this case") was confirmed to have been sold at KRW 69,00,00 on October 14, 206, Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Act") and Article 49(1) and (5) of the Enforcement Decree of the same Act, the defendant applied Article 60(1) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Act") and Article 669,00,000,000 won as the market price of the apartment of this case and calculated the gift tax of this case as the total amount of KRW 1/2,334,500,0505.

2. Whether the instant disposition is lawful

(1) Article 49(1) and (5) of the Enforcement Decree of the Act, which provides the basis for the disposition of this case, requires the taxpayer to perform a duty that cannot be predicted at all by ensuring that the transaction or content of the same or similar property is determined on the basis of the assessment of the value of donated property. In the case where the donee calculated the amount of the gift tax by evaluating the value of donated property according to the standard market price lower than the market price, the difference is later reflected in the calculation of the transfer income tax following the transfer of donated property. As such, the taxpayer should choose to the taxpayer as to whether the amount of tax equivalent to the value of donated property should be reflected in any tax among the gift tax and the transfer income tax, so it is unconstitutional and unlawful since the taxpayer’s choice should be denied, this disposition

It is not reasonable to regard the sales price of the apartment of this case as the market price on the basis of only the sales cases of the comparison apartment of this case. Thus, the disposition of this case is unlawful.

(b) Related statutes;

Article 60 (Principles, etc. of Appraisal)

Article 61 (Appraisal of Real Estate, etc.)

Article 49 (Evaluation Principles, etc.)

C. Determination

(1) Whether Article 49(1) and (5) of the Enforcement Decree of the Act are unconstitutional or unlawful

Article 60(1) and (2) of the Act state that the value of donated property is based on the market price as of the date of donation. Article 60(1) and (2) of the Enforcement Decree of the Act state that the meaning of the market price is recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the expropriation, public auction price, appraisal price, etc. in addition to the value which is recognized as normal in cases of free trade between many and unspecified persons, and Article 49(1) of the Enforcement Decree of the Act stipulates that with respect to the market price of donated property, the price of donated property shall be determined as the price confirmed under each of the following subparagraphs in cases of sale, appraisal, expropriation, auction, or public sale during the period of three months before or after the base date of appraisal. Article 49(5) of the Enforcement Decree of

In full view of the purport, contents, etc. of the above relevant Acts and subordinate statutes, ① the market price is, in principle, an objective exchange price formed through a normal transaction. However, the Act delegates the specific standard of the market price to the Presidential Decree, but it is difficult to provide for all transaction methods following the continuous change in the transaction reality and the form of the transaction. ② Article 49(5) of the Enforcement Decree of the Act aims to realize the principle of substantial taxation by resolving unreasonable price, which is identical or similar to the pertinent donated property, even though the market price exists in the appraisal of donated property, even though there is an unreasonable price that can not be recognized as the market price. ③ Since the Act adopts the principle of market price in the appraisal of donated property, the purpose of this Act is to establish the detailed standard of determining the area, location, purpose, and issue as the criteria for determining the same or similar donated property, ③ If there is an apartment house transaction case that is identical or similar to the price of donated property and the transaction price of each apartment house is unconstitutional or similar to the price of donated property, it can be found that the transaction price of each apartment site is identical or similar to the market price.

Whether the same or similar nature of the instant apartment and the instant comparative apartment is recognized

㈎ 갑 제3, 6호증, 을 제2호증의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 비교아파트는 이 사건 아파트와 동일 단지 내의 동일 면적의 아파트로서 2006. 10. 14. 669,000,000원에 매매되었는데, 이 사건 아파트와 이 사건 비교아파트의 면적, 위치, 거래일자, 거래금액 및 기준시가는 아래 표의 기재와 같은 사실을 인정할 수 있다.

㈏ 위 인정사실에서 본 바와 같이 이 사건 비교아파트는 이 사건 아파트와 비교하여 동 및 층수는 서로 다르지만 동일한 단지 내의 주거용 아파트오서 그 위치가 유사하고, 면적ㆍ용도ㆍ종목이 동일하며, 이 사건 아파트의 증여일 이전 3개월 이내에 매매가 이루어진 것인 점, 이 사건 아파트의 증여 당시 이 사건 비교아파트의 기준시가는 473,000,000원으로서 이 사건 아파트의 기준시가 488,000,000원보다 낮은 점, 이 사건 아파트가 18층 아파트건물 중 9층에 위치하여 4층에 위치한 이 사건 비교아파트에 비하여 일반적으로 선호도가 더 높은 층에 위치하는 것으로 보이는 점 등을 종합하여 보면, 이 사건 비교아파트의 매매는 이 사건 아파트의 증여일 이전 3개월 내에 이루어진 것으로서 이 사건 아파트의 면적ㆍ위치ㆍ용도 및 종목이 동일하거나 유사한 아파트의 매매에 해당하고, 그 매매가액도 객관적 교환가치를 반영한 정상적인 거래가액으로 보이므로, 이 사건 비교아파트의 매매가액 669,000,000원을 이 사건 아파트의 시가로 보아 이루어진 이 사건 처분이 이 사건 아파트의 정확한 시가를 평가하지 못한 것이라고 할 수는 없고, 원고의 이 부분 주장도 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.