As of the commencement date of inheritance, the deceased acquired the right to purchase an apartment, and thus, it is the right to acquire the real estate included in the deceased’s inherited

Since the deceased acquired a apartment sales right as of the commencement date of the inheritance, it is legitimate to evaluate the sales price paid until the commencement date of the inheritance as the market price of the apartment sales right, and it cannot be viewed any different because the resale was prohibited at the time of the commencement date of the inheritance or the price of the apartment in this case

2014Guhap6754 Revocation of Disposition of Imposing capital gains tax

JeonO

O Head of tax office

July 7, 2015

September 1, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant’s imposition of KRW 000,000 on the Plaintiff on February 5, 2014, for the transfer income tax of the year 2011.

The disposition shall be revoked.

1. Details of the disposition;

A. On December 20, 201, the Plaintiff is a legal spouse of the deceased Kim Jong-dae (hereinafter referred to as “the deceased”).

B. As a result of the Defendant’s investigation into the inheritance tax on the Plaintiff from July 22, 2013 to September 19, 2013, the Defendant assessed that the market price of the right to sell an OOOdong 1181 OOOOOOOOO (hereinafter “instant apartment”) of the deceased (hereinafter “instant apartment”) was KRW 00,00, the sale price paid by the deceased until December 20, 2011, the commencement date of the inheritance, and determined KRW 00,000,000,000, which is the total amount of assets inherited by the Plaintiff, including financial liabilities, was deducted from the total amount of liabilities inherited by the Plaintiff, as inherited property value.

C. Meanwhile, the Deceased on May 13, 201, prior to his death, prior to the OO of the OO on his own possession 361

2,750 square meters were sold to KimO. After the death of the deceased, the Defendant calculated the acquisition value as the conversion acquisition value under Article 97 of the Income Tax Act and revised the transfer income tax. On February 15, 2014, on the basis of Article 24 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014); Article 11(1) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 24573, Jun. 11, 2013); imposed a disposition imposing KRW 00,000 for the transfer income tax belonging to the inheritance value of the deceased (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Eul evidence 1-4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's cause of claim

1) Since the sale right of this case was prohibited from resale under the Housing Act at the time of commencing the inheritance and thereafter the market price has lowered thereafter, it is unlawful to evaluate the value of the sale right as the sale price paid by the deceased until the commencing date of the inheritance, and the value of the sale right should be assessed as the amount retroactively appraised as of July 27, 2012, when the resale right became possible.

2) The Plaintiff bears acquisition tax of KRW 000 on the apartment of this case, which must be deducted from the value of inherited property.

3) Nevertheless, the Defendant calculated the acquisition tax on the apartment of this case without properly assessing the value of the instant apartment without deducting the acquisition tax on the apartment of this case, and imposed the transfer income tax to the extent of the excessive amount. Accordingly, the Defendant’s disposition of this case was unlawful, since the transfer income tax exceeding the reasonable inherited property amount was imposed on the Plaintiff.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the plaintiff's inherited property is "right to acquire real estate"

In full view of the purport of Gap evidence Nos. 3, 4, and 8 as well as the overall purport of the arguments, the deceased shall sell the apartment of this case between the Korea Land and Housing Corporation and the Korea Land and Housing Corporation on November 27, 2009.

The sales contract with 00 won was concluded, and the sales contract was made from November 27, 2009 to June 28, 201, which was before the death from November 27, 2011, with the exception of late payment charges, ② the Plaintiff paid 000 won, excluding late payment charges, from March 19, 201 to June 4, 2012 after the agreement was made with the Korea Land and Housing Corporation to succeed the sales contract, ② the Plaintiff paid 000 won, excluding late payment charges, until June 4, 2012 from the same date; ③ the registration of preservation of ownership of the instant apartment was made in the name of the Korea Land and Housing Corporation on May 23, 2012; and ④ the fact that the Plaintiff inherited the property of the deceased on December 20, 2011.

According to the above facts, the apartment house of this case was not completed as of the commencement date of the inheritance, which is the evaluation base date, and the deceased acquired the right to purchase the apartment house of this case from the Korea Land and Housing Corporation, so it is "the right to acquire the real estate" that is included in the deceased'

2) The market price as at the commencement date of the instant sales right

Article 60(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter the same) provides that "the value of the property on which inheritance tax is levied shall be calculated at the market price as of the date the inheritance commences." Paragraph (2) of the same Article provides that "the market price under paragraph (1) of the same Article shall be the value which is generally established when free transactions are conducted between many and unspecified persons, and shall include those which are recognized as the market price under the conditions as prescribed by Presidential Decree, such as the expropriation, public sale and appraisal price, and appraisal price." Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23591, Feb. 2, 2012; hereinafter the same shall apply) is an objective and reasonable valuation price under Article 60(2) of the Act, which is included in the sale, appraisal, auction or public sale price within 6 months before and after the base date of appraisal.

As to the instant case, there is no dispute between the parties that there is no expropriation price, public auction price, appraisal price, and similar sale price of the instant right as of December 20, 201 as of December 20, 201, and there is no other method to confirm the value generally established when transactions are made freely between many and unspecified persons (this case’s appraiser Kim - who was entrusted with appraisal by the court also difficult to investigate the sale price as of December 20, 201). In this case, Article 61(3) of the former Inheritance Tax and Gift Tax Act provides that the right to acquire real estate shall be the value appraised by the method prescribed by the Presidential Decree, considering the remaining period, character, content, transaction circumstances, etc. of the relevant right to acquire real estate, and Article 51(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the value of the right to acquire real estate under the provisions of Article 61(3) of the former Enforcement Decree of the Inheritance Tax Act shall not be deemed to be the market price of the instant case’s inheritance tax and gift tax.

3) Whether acquisition tax has been deducted

According to Article 14(1) of the former Inheritance Tax and Gift Tax Act and Article 9(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, public charges that are deducted from inherited property refer to taxes, public charges, etc. succeeded to by an heir as of the date of commencing the inheritance, and for which the tax liability has been established as of the date of commencing the inheritance, but those, for which the tax liability has been established after the date of commencing the inheritance, are excluded from the scope of public charges. However, according to Articles 10(7) and 20(2) of the Local Tax Act and Article 20(2) of the Enforcement Decree of the same Act, the acquisition tax on the apartment shall be reported and paid within a certain period from the date of the outstanding payment under the contract, deeming that the acquisition by succession was acquired on the date of the outstanding payment under the contract, and as seen earlier, so long as

3. Conclusion

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

(c)