Cho Jae-2018-China-571 (2018.09)

The recognition of acquisition value by retroactive appraisal must be strictly applied.

If the transfer income tax is disposed of by retroactive appraisal, it is legitimate to calculate the acquisition value by deeming the standard market price at the time of donation as the acquisition value because it cannot be disposed of by the Do of exclusion period for imposition due to the excess

Article 49 of the Inheritance Tax and Gift Tax Act / [the Evaluation Principles, etc.]

2018Guhap13440 The revocation of the revocation of the capital gains tax rectification

AA

O Head of tax office

.08.27

2019.24

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

가. 원고는 XXXX. XX. XX. 서울 ○○구 ●○동 OOO-O 대 OOO㎡ 및 그 지상 건물(이하 위 토지와 건물을 합하여 '이 사건 부동산'이라 한다)을 XXXX. XX. XX.자 증여를 원인으로 취득하였다.

나. 원고는 XXXX. X. XX. 이 사건 부동산에 관하여 ●○기 및 김□□과 매매대금을 85억 원으로 하는 매매계약을 체결하고, XXXX. XX. XX. ●○기(X분의 X 지분) 및 김□□(X분의 X 지분)에게 이 사건 부동산에 관한 소유권이전등기를 마쳐주었다.

다. 원고는 XXXX. XX. XX. 이 사건 부동산에 대한 취득가액을 O,OOO,OOO,OOO원(= 토지 O,OOO,OOO,OOO원 + 건물 OOO,OOO,OOO원)으로 평가하여 계산한 양도소득세 O,OOO,OOO,OOO원을 신고・납부하였다.

라. 원고는 주식회사 □□감정평가법인에 의뢰하여 이 사건 부동산의 증여일인 XXXX. XX. XX.을 기준시점으로 하여 산정된 이 사건 부동산의 가액 O,OOO,OOO,OOO원(= 토지 O,OOO,OOO,OOO원 + 건물 O,OOO,OOO,OOO원, 이하 '이 사건 제1감정가액'이라 한다)을 이 사건 부동산의 취득가액으로 하여 양도소득세를 재계산한 뒤 XXXX. XX. XX. 피고에게 위와 같이 신고・납부한 양도소득세를 O,OOO,OOO,OOO원으로 감액하고 OOO,OOO,OOO원을 환급하여 달라는 내용의 감액경정청구를 하였다.

마. 피고는 XXXX. XX. XX. 증여재산에 대한 평가는 평가기준일 전후 3개월 내에 이루어져야 하므로 증여일로부터 XX여 년이 지난 이 사건 감정가액은 취득가액으로 인정할수 없다는 이유로 원고의 경정청구를 거부하였다(이하 '이 사건 처분'이라 한다).

바. 이 법원의 감정촉탁에 따라 XXXX. X.경 이루어진 이 사건 부동산의 XXXX. XX. XX.기준 감정평가액은 O,OOO,OOO,OOO원(= 토지 O,OOO,OOO,OOO원 + 건물 O,OOO,OOO,OOO원, 이하 '이 사건 제2감정가액'이라 하고 이 사건 제1감정가액과 함께 '이 사건 각 감정가액'이라 한다)이다.

[인정근거] 다툼 없는 사실, 갑 제1 내지 5호증, 을 제2, 3호증의 각 기재, 이 법원의주식회사 ■■감정평가법인 감정인 ■■후에 대한 감정촉탁결과, 변론 전체의 취지

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

In calculating the transfer income tax on the assets acquired by donation, the acquisition value shall be calculated at the market price at the time of acquisition. In the case of appraisal by a reliable appraisal institution’s appraisal value, it shall be included in the above market price even if it was based on retroactive appraisal. According to each appraisal value of this case, although the Plaintiff could have known that the Plaintiff filed an excessive return of tax base and tax amount in filing a return of the transfer income tax on the real estate of this case, the disposition of this case on the ground that the Defendant cannot be deemed the acquisition value should be deemed the acquisition value, and the transfer income tax shall be determined on the basis of the 2 appraisal value, which is the appraisal value assessed according

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

A) According to Article 97(1)1(a) of the former Income Tax Act (amended by Act No. 15225, Dec. 19, 2017; hereinafter the same), and the main sentence of Article 163(9) of the Enforcement Decree of the Income Tax Act, the acquisition value that is deducted as necessary expenses in the calculation of gains on transfer refers to the actual transaction value at the time of acquisition of the assets. In the case of donated assets, the value assessed pursuant to Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of donation is deemed as the actual transaction value at the

B) According to Article 60(1) and (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 15224, Dec. 19, 2017; hereinafter the same), the value of a property on which a gift tax is levied shall be the market price as of the date of donation, and the market price includes the value generally recognized as a transaction at a free price among many and unspecified persons, and the value is recognized as the market price, as prescribed by Presidential Decree, such as the expropriation price, public sale price, and appraisal price. Article 49(1)2 (a) and (b) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 2953, Feb. 12, 2019) provides for the average value of appraisal values appraised by two or more reliable appraisal institutions for the pertinent property for a period of not more than three months before or after the date of donation. However, the above appraisal value not suitable for the payment purpose of the gift tax or the above appraisal value at the time of donation is excluded.

According to the above, in calculating gains on transfer of donated property, the market price of real estate as at the date of donation should be recognized as the acquisition value. If the appraisal value by a reliable appraisal institution is the market price regardless of whether it was based on retroactive appraisal, the appraisal value by retroactive appraisal may also be recognized as the acquisition value (see Supreme Court Decision 2010Du8751, Sept. 30, 2010).

2) However, Article 97 (1) 1 (b) of the former Income Tax Act provides that "where it is impossible to confirm the actual transaction value at the time of acquisition, it shall be based on the transaction example value, appraisal value or conversion value as prescribed by the Presidential Decree." Article 163 (12) of the Enforcement Decree of the Income Tax Act delegated by him provides that "the value of transaction example, appraisal value or conversion value as prescribed by the Presidential Decree" means the value under Article 176-2 (2) 1 (b) of the former Income Tax Act. The main sentence of Article 176-2 (3) of the former Income Tax Act provides that "where the transfer value or acquisition value is estimated or revised by applying the following method in the order of priority, it shall be based on the value calculated by applying the following method." Article 176-2 (2) 2 of the former Income Tax Act provides that "if there is an appraisal value which is evaluated by two or more appraisal business entities with respect to the relevant assets within three months before or after the date of transfer or acquisition, the value of appraisal (limited to three months before or after the date of acquisition).

3) In the case of donated property, as seen earlier, Article 163(9) of the Enforcement Decree of the Income Tax Act provides that the value assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act shall be deemed as acquisition value. Thus, it is difficult to deem that Article 97(1)1(b) of the former Income Tax Act and Article 163(12) of the Enforcement Decree of the Income Tax

However, in calculating gains on transfer, “actual transaction value” refers to the actual transaction price itself or the amount of actual agreement for payment at the time of transaction. As such, the general market price that reflects the objective exchange value and its meaning at all times are not the same (see, e.g., Supreme Court Decision 2009Du19465, Feb. 10, 201). In addition to cases where Article 97(1)1(b) of the former Income Tax Act and Article 163(12) of the Enforcement Decree of the Income Tax Act are applied, in cases of donated property, it is necessary to assess its objectivity or credibility more strictly in recognizing the acquisition value by retroactive appraisal beyond the evaluation period as the acquisition value by retroactive appraisal.

4) Whether each of the appraisal values of the instant case can be viewed as acquisition value

A) According to the following circumstances, each of the instant appraisal values cannot be deemed as the acquisition value of the instant real estate in view of the aforementioned evidence and the evidence as stated in the evidence No. 1, comprehensively based on the overall purport of the pleadings.

(1) The 1st appraisal value of this case is not the average value of the appraisal value assessed by more than two reliable appraisal institutions within three months before and after the date of donation, but is limited to one of the appraisal values assessed retroactively after about 13 years and ten months from the date of donation, and the 2nd appraisal value of this case does not differ significantly from the 1st appraisal value of this case. However, in light of the fact that, among each appraisal value of this case, it is difficult to select similar transaction cases in particular in the case of buildings, and it is difficult to extract only the value of buildings in the reality where land and buildings are traded collectively, the 1st appraisal value of this case is assessed by means of a reduction and revision in the cost of repurchasing the building, and the passage of time and rapid change in the surrounding environment, etc., it is difficult to view that each appraisal value of this case is appraised in accordance with the original value of the real estate as at the date of donation, and it reflects

(2) 원고가 이 사건 부동산을 증여받은 데 대한 증여세 부과제척기간은 그 법정신고기한(증여받은 날이 속하는 달의 말일부터 3개월)의 다음날부터 10년이므로, 피고는 원고가 이 사건 부동산을 증여받은 날이 속하는 달인 XXXX. XX.말부터 3개월이 되는 날의 다음날인 XXXX. X. X.부터 XXXX. X. XX.까지 원고에게 증여세를 부과할 수 있다. 그런데 원고는 당초 실지거래가액을 O,OOO,OOO,OOO원으로 하여 이 사건 부동산에 대한 증여세를 신고・납부한 뒤, 증여세 부과제척기간이 도과하고도 3년 이상 경과한 XXXX. XX.경 한 곳의 감정평가기관에 이 사건 부동산에 대하여 증여일을 평가기준일로 한 감정평가를 의뢰하였고, 그에 따른 감정가액을 기준으로 이 사건 부동산의 취득가액을 재계산하여 양도소득세 경정청구를 하였다. 이와 같은 사정을 고려하면 원고는 증여세 부과제척기간 경과 후 양도소득세 감액을 목적으로 위 감정평가를 의뢰한 것으로 보여 그에 따른 감정이 객관적으로 이루어진 신빙성 있는 것이라고 보기 어렵다.

(3) If donated property is subject to subsequent transfer, it is reasonable to determine that the original gift tax return value becomes the acquisition value of the transfer income tax. For this reason, the provisions on the calculation of the acquisition value of donated property under Article 97(1)1 (a) of the former Income Tax Act and Article 163(9) of the Enforcement Decree of the Income Tax Act concerning the calculation of the value of donated property under the Inheritance Tax and Gift Tax Act shall apply mutatis mutandis. Considering this, it is difficult to view each of the appraisal values of this case obtained through retroactive appraisal for the purpose of tax payment after the expiration of the exclusion period

(4) In a case where donated assets are transferred, the value corresponding to the gift tax base may be recognized as necessary expenses for the relevant assets when calculating gains on transfer, and the imposition of capital gains tax may prevent tax evasion or double taxation only when the transfer value exceeds the above value. Therefore, the acquisition value, which is the necessary expenses to be deducted from the value of donated property and the transfer value, should be the same. However, even though the Plaintiff reported and paid gift tax based on the standard market price of the real estate in this case based on the standard market price of the real estate in this case, the exclusion period of imposition cannot prevent omission of taxation because the Plaintiff’s disposition of capital gains tax correction based on the retroactive appraisal, which is much higher than the above standard market price, was made after the Plaintiff’s request for reduction correction after the exclusion period of imposition expires.

B) Therefore, the Plaintiff’s assertion cannot be accepted on the premise that each of the appraisal prices of the instant real estate constitutes the market price of the instant real estate.

3. Conclusion

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