Cho Jae-de 2016 Gwangju183,1188 Combined (07. 2016.07)

The appraised value assessed in comprehensive consideration of all the factors forming the real estate shall fall under the market price.

The appraised value of the appraisal corporation* the appraisal corporation* the appraisal corporation and the appraisal corporation* The appraisal corporation's appraisal value shall be a reasonable price assessed in comprehensive consideration of all the factors forming real estate prices, even if it exceeds the period prescribed by the Act.

Article 163 of the Enforcement Decree of the Income Tax Act (Necessary Expenses for Transferred Assets), Article 60 (Principles of Appraisal, etc.), Article 49 (Principles of Appraisal, etc.) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, Article 15 (Principles of Appraisal, etc.) of the Enforcement Rule

Revocation of revocation of revocation of rejection of rectification of transfer income tax in Gwangju District Court-2016-Gu -12127 ( October 2017)

AA

000 director of the tax office

on October 29, 2017

on October 1, 2017

1. Each disposition rejecting correction of KRW 22,478,708, which the Defendant rendered against the Plaintiffs on December 14, 2015, respectively, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Change in ownership of the instant real estate

1) Song** on October 16, 2006 * Si* Gu* * 2* 2* 30,000,000 square meters of land outside 3 lots of land (hereinafter referred to as “the instant land”) were purchased in 590,000,00. On December 6, 2007, the building for general restaurants was newly constructed on the instant land (hereinafter referred to as “the instant building”) 194.54 square meters of the instant land and the instant building collectively.

2) Forwarding** died on July 27, 2013. The Plaintiffs, as children of Song***, completed the registration of ownership transfer for each of the instant real property on October 4, 2013 due to each inheritance (Evidence A3 and 4).

B. The preliminary return of this case

On June 25, 2015, the Plaintiffs sold the instant real estate at KRW 700,00,000 (Evidence No. 3). After that, the Plaintiffs sold the acquisition value of each of the instant real estate at KRW 213,484,50, respectively (i.e., KRW 174,576,500 for the instant land + KRW 174,576,500 for the instant building + KRW 1/28,908,00 for the instant building), and the transfer value at KRW 349,99,99 for each of the said shares transferred at KRW 23,745,08 for the transfer income tax of KRW 2015 (hereinafter referred to as “the instant preliminary return”). (Evidence No. 1)

C. Results of appraisal of the instant land

On the other hand, the plaintiffs have been in charge of appraisal of the land in this case* Appraisal Corporation and * Appraisal Corporation* Appraisal Corporation, each of the above appraisal corporations assessed the land in this case as follows.

(A) Evidence No. 5)

The appraised value (cost) as of the date of preparation of the company

The LIM* An appraisal corporation* An appraisal corporation on July 27, 2017, 2015. 547, 728,000 on April 14, 2015

The Institute of Bankruptcy* an appraisal corporation* An appraisal corporation on December 27, 2017, 2015. 529,694,000 on March 13, 2015

Average appraised Price: 538,711,000

D. Plaintiffs’ request for correction of capital gains tax and Defendant’s disposition of this case

1) On October 13, 2015, based on each of the above appraisal results, the Plaintiffs filed a claim for correction to the Defendant for reduction of KRW 22,479,708, respectively, based on the tax base based on which the acquisition value of the instant land was KRW 538,71,00,00 (Evidence 1-2, 3).

2) However, on December 14, 2015, the Defendant dismissed the claim for correction on the ground that the appraisal value assessed retroactively after six months from the date on which the inheritance commences cannot be recognized as the market price of inherited property (Evidence A 2) (hereinafter “instant disposition”).

E. The plaintiffs' appeal and dismissal decision

The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 10, 2016, but the Tax Tribunal dismissed the Plaintiff’s request for examination on June 7, 2016 (Evidence A3). The Plaintiffs filed the instant lawsuit on August 29, 2016, which was within the filing period, after receiving a notice of the said dismissal decision.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 60(3) and Article 61(1) of the Inheritance Tax and Gift Tax Act provides that KRW 174,576,500, which is the amount calculated on the basis of the officially assessed individual land price, shall be the acquisition value of the land of this case (which shall be deducted from the transfer value when calculating gains from the transfer) and KRW 23,745,08, which is calculated on the basis of the above facts. However, the above KRW 174,576,50, which is much less than the market price of each of the above shares, and as long as the market price of each of the above shares is proved, the transfer income tax on the plaintiffs shall be revised on the basis of the market price as the acquisition value of each of the above shares. However, the "market price" includes the appraisal price of a reliable appraisal institution. The average appraisal price of each of the above shares appraised by a reliable appraisal institution is 269,35,500,000 (=538,711,000) 1/2).

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

Article 95 (1) of the Income Tax Act provides that "the amount of transfer income shall be the amount calculated by deducting the necessary expenses under Article 97 from the total amount of transfer income under Article 94 (hereinafter referred to as "transfer value"), and then subtracting the special deduction for long-term holding from such amount (hereinafter referred to as "transfer marginal profits"), and the main sentence of Article 97 (1) 1 (a) provides that "the actual transaction value for the acquisition of assets under subparagraphs of Article 94 (1)" with respect to the acquisition value, which is one of the necessary expenses to be deducted from the transfer value, shall be "the actual transaction value for the acquisition of assets under subparagraphs of Article 94 (1)" in the main sentence of Article 163 (9) of the Enforcement Decree of the Income Tax Act, and in the application of the main sentence of Article 97 (1) 1 (a) of the Act with respect to the assets received by inheritance or donation (excluding donations under Articles 33 through 42 of the Inheritance Tax and Gift Tax Act), the value appraised under Articles 60 through

Meanwhile, the main sentence of Article 60 (1) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Inheritance Tax and Gift Tax Act") provides that "the value of the property on which inheritance tax or gift tax is levied under this Act shall be based on the market price as of the date of commencing the inheritance or the date of donation (hereinafter referred to as "date of appraisal")," and Article 60 (2) provides that "the market price under paragraph (1) shall be the value generally deemed to be established when transactions are made freely between many and unspecified persons and shall include the amount recognized as the market price, as prescribed by Presidential Decree, such as the expropriation price, public sale price, and appraisal price," and "the amount recognized as the market price, as prescribed by Presidential Decree, such as the expropriation price, public sale price, and appraisal price" under the main sentence of Article 49 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act means six months before and after the base date of appraisal (in cases of donated property, three months; hereafter the same shall apply in this paragraph) where appraisal price is confirmed as one of the following appraisal prices (excluding appraisal price:

As above, Article 60 of the Inheritance Tax and Gift Tax Act declares the principle of market value in the evaluation of inherited or donated property under Article 60(1). Paragraph (2) provides for a broad standard which can be recognized as the market price on the premise that the market price is formed through a general and normal transaction, and that it should reflect an objective exchange value, and delegates specific scope to the Presidential Decree. The provision of the appraisal value, etc. of the “relevant property” subject to taxation under each subparagraph of Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, which is delegated, as the market price, is a representative example of cases where it can be seen as the market price of inherited or donated property (see, e.g., Supreme Court Decision 2013Du13723, Dec. 12,

In addition, even if the tax authority assessed the acquisition value of assets as a publicly assessed individual land price for the reason that it is difficult to assess the market price at the time of the inheritance of assets, if the market price at the time of the inheritance of assets is verified by the time of the closing of argument in the lawsuit seeking revocation of the said taxation, the determination of whether the amount of the said taxation exceeds the reasonable tax amount after calculating the reasonable transfer margin and the tax amount. Here, “market price” refers to the objective exchange price formed through a normal transaction in principle, but it is a concept that includes the value assessed in an objective and reasonable manner, and thus, if there is no exchange price through a transaction, the appraisal price at a reliable appraisal institution may be deemed as “market price,” and even if the value is not changed by retroactive appraisal (see Supreme Court Decision 2010Du8751, Sept. 30, 2010)

2) Market price of the instant land

In full view of the facts recognized in paragraph (1) and the following circumstances that can be known through the overall purport of the statements and arguments set forth in Nos. 6, 7, and 8, the appraisal* certified public appraisal corporation and the dispute settlement center*

It is reasonable to view that KRW 538,711,00, which is the average value of the appraised value of the land of this case, is the most appropriate reflection of the market price of the land of this case.

A) On December 1, 2006, ** purchased the instant land in KRW 590,00,000. Moreover, the assessed individual land price of the instant land until the death** thereafter, the assessed individual land price of the instant land did not appear annually (see evidence 6). If so, at least on July 27, 2013, it can be easily predicted that the value of the instant land was higher than 590,000,000 won.

B) The appraisal value of the instant land by the appraisal corporation* the appraisal corporation* the appraisal corporation and the appraisal corporation* the appraisal corporation’s appraisal corporation? The appraisal value of the instant land does not considerably exceed KRW 590,000,000, which is the expenses paid for the purchase of the instant land. Moreover, when comparing the transaction amount with the appraisal value of each of the instant land by the appraisal corporation at the time of the inheritance of the instant land by the Plaintiffs, it can be confirmed that the difference between the transaction price and the appraisal price of each of the instant land by the above appraisal corporation is the lowest in the appraisal price ratio compared to the appraisal price of each of the instant land by the above appraisal corporation as seen below (Evidence 7). Thus, it is reasonable to view that the appraisal value of each of the instant land by the appraisal corporation falls under the reasonable market price assessed by comprehensively taking into account the factors constituting the real

C) The land selected as a comparative standard by each appraisal corporation in conducting an appraisal of the instant land is identical or similar to that of the instant land and the specific use area, utilization status, surrounding environment, etc. The appraiser who appraised the instant land is indicated to have selected a standard land among the reference land in the vicinity published on January 1, 2013, which is the most recently announced on January 1, 2013, pursuant to Article 14(3)1 of the Rules on Appraisal, among the reference land in the vicinity published on January 1, 2013, the officially announced land price of the standard land was the same or similar to that of the land among the reference land in the vicinity (Evidence 5).

D) The LABC * Appraisal Corporation* An appraisal corporation also assessed that the appraised value of the instant land was KRW 49,110,000 as a result of the appraisal of the instant land at the base point of September 24, 2013, when the Plaintiffs inherited the instant land (Evidence A8).

3) Whether the instant disposition is lawful

As recognized in the above 2), the market price of the instant land ought to be KRW 538,711,00. However, in calculating the transfer income tax following the transfer of the instant real estate, the acquisition price of the instant land among the acquisition price of the instant real estate, which falls under the necessary expenses to be deducted from the transfer price pursuant to the main sentence of Article 97(1)1 (a) of the Income Tax Act, Article 163(9) of the Enforcement Decree of the Income Tax Act, and Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act, exceeds KRW 538,71,00,00,000, which was reported by the Plaintiffs as the acquisition price of the instant land (=26,969,000,000 which was initially reported by the Plaintiffs as the acquisition price of the instant land (=213,484,500 x 2). Thus, it is clear that

Therefore, the plaintiffs' claim for correction that the market price of the real estate of this case was reduced by the reduction of capital gains tax is justifiable, and the defendant's disposition that rejected this claim is unlawful.

3. Conclusion

Therefore, since the plaintiffs' claim of this case is reasonable, it shall be accepted and it is decided as per Disposition.