Do with the exclusion period of imposition, such as inheritance tax, and refusal to request the correction of transfer tax with the retroactive appraisal amount is legitimate.

The rejection of a request for correction is legitimate because it is impossible to prevent omission of tax because the value of donated property and the acquisition value, which is necessary expenses to be deducted from the transfer value, are not identical because the disposition of gift tax cannot be made with the Do of exclusion period

Article 97 (Calculation of Necessary Expenses of Capital Gains)

2018Gudan12375 Revocation of Disposition of Rejecting Transfer Income Tax

west 00

00. Head of tax office

August 21, 2019

August 28, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s refusal to rectify capital gains tax against the Plaintiff on May 2, 2018 shall be revoked.

1. Details of the disposition;

A. Proof by the plaintiff

“(1) On December 26, 2006, the Plaintiff, a husband, donated Nos. 501, 601, and 701 of the building Nos. 501, 601, and 701 (hereinafter “the instant real estate”) from thisB, her husband, and completed the registration of ownership transfer based on donation on December 27, 2006.

(2) On February 8, 2007, the Plaintiff’s value of donated property of the instant real estate is the standard for the instant real estate.

The market price applied 619,886,460 won was reported.

B. The Plaintiff’s filing of transfer tax return and correction claim

(1) On September 5, 2017, the Plaintiff sold the instant real estate to KimA on August 22, 2017.

on September 30, 2017, the title transfer registration was completed on the ground that the title transfer registration was completed, and the amount of the instant real estate to the Defendant

The acquisition value of the Do shall be KRW 1,120,000,000, the acquisition value shall be assessed as the standard market value at the time of donation in 2017.

102,378,880 won was reported and paid.

(2) On February 28, 2018, the Plaintiff: (a) on October 13, 2017 and October 16, 2017, the real estate of this case to the Defendant.

A correction to the effect that "the average value of each retroactive appraisal of Eul 934,500,000 won (hereinafter referred to as "the appraisal value of this case")" and "the acquisition value shall be 82,194,420 won (hereinafter referred to as "the appraisal value of this case") and the refund shall be made."

Claim was filed

C. Disposition and ruling of this case

(1) On May 2, 2018, the Defendant filed an application for rectification of the transfer income tax on the instant appraised value with the Plaintiff.

at the expiration of 10 years from the date of donation; and

It is the value appraised at a small level, which is the value appraised, and 6 days before or after the base date of appraisal stipulated in Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (Presidential Decree No. 28638, Feb. 13, 2018; hereinafter the same shall apply).

shall not constitute a sale, appraisal, expropriation, auction, or public auction within a month. For reasons, a novation:

"The rejection disposition against the rejection disposition (hereinafter referred to as the "disposition of this case") was made on May 16, 2018, and (2) the plaintiff appealed to the National Tax Service on May 16, 2018, but filed a request for review with the National Tax Service.

26. The decision to dismiss the plaintiff's request was made.

[Reasons for Recognition] Unfounded Facts, Gap evidence 1 to 8 (including additional numbers), Eul evidence 1;

The purport of all pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The acquisition value of assets necessary for calculating capital gains tax shall be the date of donation in the case of donated assets.

Current market price should be calculated, and if there is appraisal value by a reliable appraisal institution, the appraisal value may be assessed.

It is proved that the objective and reasonable market value at the time of donation has been proven even if it is a retroactive appraisal.

Thus, acquisition value should be recognized. Therefore, the appraisal value of the instant case can be seen as acquisition value.

The instant disposition was unlawful on the ground that there was no illegality.

B. Relevant statutes

As shown in the attached Table related Acts and subordinate statutes

C. Determination

(1) Article 97 of the Income Tax Act (Amended by Act No. 15225, Dec. 19, 2017; hereinafter the same)

Article 1 (1) 1 (a) of the Enforcement Decree of the same Act, and Article 28637 of the Bridge Decree No. 213, 2018

(E) According to the main sentence of Article 163(9) of the Act, the acquisition price that is deducted from the necessary expense when calculating the transfer margin.

"Amount" means the actual transaction value at the time of acquisition of the assets, such as donation in case of donated assets, acquisition of "value appraised under the provisions of article 60 to article 66 of the Inheritance Tax and Gift Tax Act as of the day," and legal fiction as the actual transaction value at the time of acquisition.

Inheritance Tax and Gift Tax Act (Amended by Act No. 15224, Dec. 19, 2017; hereinafter the same shall apply)

C) According to Article 60(1) and (2), the value of property on which inheritance tax is levied is as of the date of donation.

The market price shall be in accordance with the market price, and the market price shall be freely traded between many and unspecified persons.

The amount determined by Presidential Decree, such as the expropriation price, public sale price, appraisal price, etc.;

the market price in accordance with the provisions of section 49(1) of the Enforcement Decree of the same Act.

The main sentence of subparagraph 2 shall be one of the "value recognized as the market price" under the conditions as prescribed by the Presidential Decree, and two or more reliable appraisal institutions for the relevant property during the period of not more than six months before and after the date of contribution.

The average value of the appraised appraisal value shall be provided for in the proviso to the same subparagraph: Provided, That the award shall be

The appraisal value not suitable for the payment purpose, such as current taxes, or the appraisal in the original form as at the date of donation;

Unlisted appraisal value shall be excluded from the value recognized as the market value.

(2) Taking into account the following circumstances, comprehensively taking into account the purport of the above statutes:

It is difficult to recognize that the fixed value constitutes acquisition value as of the donation date of the instant real estate.

① The appraisal value of this case shall be retrospectively ten years and ten months from the date of donation.

The average value of the two appraisal values held by the Plaintiff is nothing more than the average value at the request of the Plaintiff.

According to the market price appraisal result of the real estate in this case, the appraisal value of the real estate in this case

909,000,000 won, which is lower than the appraised value of this case and has a substantial difference.

After the lapse of such a long-term period, the difference between each assessed value and the Plaintiff’s new

Considering the standard market price, etc. of the agency, the appraisal value of this case between unspecified persons as of the date of donation

If a transaction is freely made, it would reflect the objective value normally established.

It is difficult to do so.

② The exclusion period for gift tax on the Plaintiff’s donation of real estate in this case shall be the law.

10 years from the date following the mental deadline. However, the Plaintiff is based on the original standard market price.

After filing a gift tax on real estate, the gift tax exclusion period expires, and the lawsuit shall be filed on October 2017

The date of donation to the appraisal agency of two sites was the date of appraisal, and the appraisal was requested as the date of appraisal; and

(1) Recalculation the acquisition value of the real estate in this case on the basis of the average value of two appraisal values;

The Plaintiff filed an application for rectification of capital gains tax. Considering such circumstances, the Plaintiff is subject to gift tax.

They appear to have requested their respective appraisal for the purpose of reducing capital gains tax after the expiration of the exclusion period;

It is difficult to view that the appraisal is objectively reliable.

(3) Where a donated property is later subject to transfer by a donee, the original gift tax return value.

The acquisition value of capital gains tax is logical and reasonable, and for this reason, the Income Tax Act is applicable.

97 (1) 1 (a) and Article 163 (9) of the Enforcement Decree of the same Act shall be calculated for the acquisition value of the donated assets.

The provisions concerning the calculation of value of donated property of inheritance tax and gift tax are applied mutatis mutandis.

Considering that gift tax has been paid on the basis of the standard market price, the exclusion period for imposition of gift tax

After the excess of capital gains tax, the appraisal value acquired through retroactive appraisal for the purpose of reducing capital gains tax shall be paid.

Therefore, it is difficult to deem the appraisal value of this case to be suitable for the purpose of inheritance tax and gift tax.

In light of the purport of the main sentence of Article 49 (1) and proviso to subparagraph 3 (a) of the Enforcement Decree of the Act, the market price

subsection (b) of this section.

(4) Where donated assets are transferred, the value corresponding to the gift tax base shall be transferred.

In calculating the profit, the transfer shall be deemed necessary expenses for the relevant assets, and the transfer shall exceed the value of the transfer;

If income is earned, the imposition of capital gains tax may prevent tax evasion or double taxation.

Therefore, the acquisition value, which is necessary expenses to be deducted from the value of donated property and the transfer value, is the same.

A. However, the Plaintiff reported and paid gift tax on the basis of the standard market price of the instant land.

(1) After the exclusion period for gift tax has expired, the period for exclusion for gift tax shall be extended upon the plaintiff's request for reduction or correction.

Property with the acquisition value of the appraisal value of this case based on retroactive appraisal which is much higher than the quasi-market price;

If the disposition of correction of capital gains tax is made on the basis of the capital gains tax prescribed, the Do jurisdiction period

No disposition of gift tax may not be made, which is necessary expenses to be deducted from the value and transfer value of donated property.

No omission of tax shall be prevented because the acquisition value is not the same.

(3) Therefore, rejection of the Plaintiff’s request for correction by deeming the appraisal value of this case as the acquisition value.

The defendant's disposition of this case is legitimate.

3. Conclusion

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