Cho High-depth2014Gu3175 ( October 31, 2014)

A disposition that is imposed by applying the same adjustment rate as that of the exclusive use area of each subparagraph shall be deemed to be a party.

Since a building is an aggregate building of 35 units of a commercial building with separate registration, it shall be assessed the value of each unit of a commercial building after evaluating the value of each unit of the commercial building, and it shall not be applied to the evaluation method of the value of an inherited property by viewing the building of this case as a whole as asserted by the Plaintiff.

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

Article 60 of the Inheritance Tax and Gift Tax Act:

Article 61 of the Inheritance Tax and Gift Tax Act: Appraisal of Real Estate

Revocation of Disposition Imposing Inheritance Tax

Kim 00

Head of Yeongdeungpo Tax Office

National Rotations

April 28, 2015

May 26, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The part of the disposition imposing inheritance tax of KRW 000,000,000, which the Defendant imposed on the Plaintiff on September 1, 2014 exceeds KRW 000,000 shall be revoked.

1. Details of the disposition;

A. From the father Kim 00, who died on April 3, 2013, the Plaintiff succeeded to the land and its ground building (hereinafter referred to as “the instant real estate by combining land and buildings”) 00:00 to 845, and the building (hereinafter referred to as “the instant building”). The instant building was divided into sales facilities, business facilities, and neighboring living facilities of the 1st basement, and was registered as a commercial building in the 35th office from the date of the new construction.

B. On October 31, 2013, the Plaintiff assessed the value of the inherited property of this case as KRW 0,000,000 under Article 61(5) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 12168, Jan. 1, 2014; hereinafter “Inheritance Tax and Gift Tax Act”) and reported and paid KRW 00,000,000 as a result.

C. In evaluating the value of the instant building on April 16, 2014, the Defendant: (1) the conversion price of rent, etc. under Article 61(5) of the Inheritance Tax and Gift Tax Act (hereinafter “the first evaluation method”);

② The standard market price under Article 61(1)2 of the same Act (hereinafter referred to as the "second appraisal method"), ③ the assessment method of the property for creation such as mortgage under Article 66 of the same Act (hereinafter referred to as the "third appraisal method") was calculated by adding up the largest amount, and the assessment method of the property for creation such as mortgage under Article 66 of the same Act (hereinafter referred to as the "third appraisal method") was determined by considering the total value of the building of this case as KRW 0,00,000,000 already reported and paid by the Plaintiff as the total amount of KRW 00,000,000,000 which was previously reported and paid by the Plaintiff.

D. On May 15, 2014, the Plaintiff filed an objection against the original disposition in the instant case, and obtained a reduction of KRW 000,000,000 due to an error in the usage index and adjustment rate of the instant real estate and KRW 12,660,593 from the appraised value of other assets, and received a refund of KRW 00,00,000 among the inheritance taxes.

E. On June 26, 2014, the Plaintiff filed an appeal against the instant original disposition with the Tax Tribunal. On the other hand, the Defendant confirmed that there was an error in the distribution of the area of the underground floor of the instant building, and issued a disposition to determine and notify the total amount of inheritance tax of KRW 00,000,000 among the taxable value of inherited property by reducing the amount of inheritance tax to KRW 00,000,000, but discovered that the return of inherited property, such as insurance money, was omitted. On September 1, 2014, the Plaintiff issued a disposition to increase the total amount of inheritance tax of KRW 0,00,000 (hereinafter “instant disposition”). Meanwhile, the Tax Tribunal dismissed the Plaintiff’s appeal on October 13, 2014.

[Ground of recognition] Facts without dispute, entry of Gap 1 to 5, and 7 evidence (including virtual number), the purport of the whole pleadings

2. Whether the disposition of this case is unlawful

A. The plaintiff's assertion

1) Claim on the method of evaluating the value of inherited property

Although the instant building was constructed for the purpose of lease from the beginning, it was possible to lease without making a partition registration for each commercial building. It is difficult to view that the actual value of the instant building varies depending on whether the partition registration has been completed, and thus, the computation of inherited property of the instant building is contrary to the principle of no taxation without the law and the principle of tax equality. It is unlawful to calculate the total value of the instant building by adding the largest amount among the methods of assessment under subparagraphs 1 through 3 by selecting one of the methods of assessment under subparagraphs 1 through 3 is not calculated.

2) The argument about the adjustment rate

In the case of evaluating the building of this case as the second evaluation method, since the public area of stairs, corridors, toilets, etc. of each floor is not a space for the owners of each subparagraph, the area of this part shall be applied the same 60% as the public area of underground floors to which the adjustment rate of 60% is applied in the calculation method of the standard market price of the building of the National Tax Service. The defendant applied the adjustment rate of each subparagraph to the public area of toilets of each floor, etc.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion regarding the method of evaluating the value of inherited property

A) The provisions of Articles 50(7) and 63(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act on the evaluation of inherited property are stipulated in the purport that they approach 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 Articles 61(5) and 66 of the Inheritance Tax and Gift Tax Act. Thus, even where a part of a building, which is an inherited property, is leased and partly not leased, the value of the former shall be assessed by the method stipulated in Article 61(5) of the Inheritance Tax and Gift Tax Act, Article 50(7) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the latter shall be assessed by the method stipulated in Article 61(1) of the Inheritance Tax and Gift Tax Act, Article 50(1) through (6) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (see Supreme Court Decision 92Nu3922, Sept.

B) In light of the following circumstances, comprehensively considering the aforementioned evidence and the purport of the entire pleadings, the instant disposition assessed as the final value of the instant building by calculating individual prices according to the methods of assessment Nos. 1 through 3 and adding the highest prices to each of the above prices is lawful, and the instant disposition cannot be deemed contrary to the principle of no taxation without the law or the principle of tax equality. Thus, the Plaintiff’s assertion is without merit.

(1) Where several real estate are included in inherited property, the value of each real estate shall be assessed and added individually. The building in this case is an aggregate building of 35 units in a commercial building where a separate registration is made, the value of each unit of a commercial building shall be assessed and added up. As alleged by the Plaintiff, the method of evaluating the value of each unit of a commercial building shall not be applied by deeming the building in this case as a whole.

② In cases where a single business building is registered as an aggregate building, there is a difference between the cases where the registration of division is not made because it is easy for the owner of the aggregate building to dispose of the real estate registered as an aggregate building. The Plaintiff’s inheritance of the entire business building of the building of this case is unreasonable circumstances. It is difficult to deem that the tax authority should calculate the value of inherited property by treating the building of this case as being one object.

③ When filing a return on inheritance tax on the instant building, the Plaintiff calculated the value of the instant building through the first appraisal method (the converted value of rent, etc. under Article 61(5) of the Inheritance Tax and Gift Tax Act), and according to such method, unreasonable results arise that the appraised value of the instant building temporarily or temporarily, as at the time of the instant inheritance, becomes zero won.

2) Determination as to the assertion on the adjustment rate

A) Article 61(1)2 of the former Inheritance Tax and Gift Tax Act provides that the value of inherited property of a building may be assessed at least once a year by taking into account the new construction price, structure, purpose of use, location, year of new construction, etc. In addition, the basic formula for calculating the standard market price of a building under Article 5 of the National Tax Service Notice (Public Notice of Method of Calculating the Standard Market Price of National Tax Service; hereinafter referred to as the "Public Notice") is as follows. Meanwhile, in Article 11(IV)21 of the Public Notice of this case, the following formula for calculating the standard market price of a building is stipulated as follows: (a) parking lots and mechanical rooms, boiler rooms, boiler rooms, preparation rooms, office towers, and roof towers; and (b) in Article 22, the adjustment rate according to the characteristics of each individual building "a temporary housing auxiliary building (a warehouse, toilet, screen, etc.)."

The basic calculation formula of the standard market price of buildings

(1) The standard market price = The area of a building subject to evaluation x the amount per square meter.

(2) Amount per square meter = Standard amount of new construction price of a building 】 structural index 】 usage index 】 residual value per elapsed year 】 Adjustment rate based on the characteristics of an individual building.

(i)the total floor area means, in the case of an aggregate building, the area including the exclusive and the common area;

2) The amount of money per square meter shall be discarded in the amount of less than 1,000 won.

(iii)The adjustment rate based on the characteristics of the individual building shall apply only when the standard market price is calculated in accordance with Article 61, paragraph 1, 2 of the Inheritance Tax and Gift Tax Act.

B) The following circumstances revealed by comprehensively taking account of the aforementioned evidence and the purport of the entire pleadings, namely, ① adjustment rate based on the characteristics of individual buildings is not applicable to the calculation of the standard market price pursuant to Article 99(1)1 (b) of the Income Tax Act, and is applied only to the calculation of the standard market price pursuant to Article 61(1)2 of the Inheritance Tax and Gift Tax Act, ② there is no separate adjustment rate for the "public area, such as the stairs, corridor, toilet, etc. of each floor" in the public notice, ③ the exclusive use area of each floor of the building of this case contributes to the convenience of the users of each floor of the building of this case, ③ the exclusive use area of each floor of the building of this case is not a facility for the entire building, and it is difficult to view that the parking area and the machine room of the building of this case (including underground), boiler room, the boiler room, the building of this case is not a separate annexed building, and thus, it is not included in the calculation of the value of the building of this case as part of the building of this case No. 222.

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.