Early High Court Decision 201No3799 ( October 15, 2012)

Property similar to the comparative apartment and the transaction value is judged as ordinary cases.

In full view of the fact that there is no data to deem that the structural change or artificial architecture was made in the comparative apartment and there is no data to deem that the comparative apartment has lost similarity with the apartment of this case, the comparative apartment is deemed to be a case where the transaction value is normal because the apartment of this case is identical or similar to the size, location,

2012Guhap2160 Revocation of Disposition of Imposing gift tax

Embur 2 others

Head of Seogju Tax Office

September 13, 2012

September 27, 2012

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s imposition of gift tax of KRW 000 on August 9, 201, and gift tax of KRW 00 on Plaintiff LAB, KRW 000 on Plaintiff LAB, and KRW 000 on the gift tax on Plaintiff LAB shall be revoked.

1. Details of the disposition;

A. On August 15, 2010, the Plaintiffs donated from Nonparty D with Nonparty 70-dong, Seocho-gu, Seoul, XX apartment 207-dong 604 (hereinafter “instant apartment”) and completed the registration of ownership transfer on the 27th of the same month. On September 14, 2010, the Plaintiffs assessed KRW 000 as the value of donated property and reported and paid gift tax to the Defendant.

B. On October 11, 2010, the Defendant deemed KRW 000 of the sales price of the instant apartment as of October 11, 2010 in the same Dong as the instant apartment, and on August 9, 2011, notified the Plaintiffs of the gift tax of KRW 000 (Plaintiff NohA00, Plaintiff ParkB00, Plaintiff ParkbB00, and Plaintiff ParkbCC00) (hereinafter “instant disposition”).

C. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on October 18, 201, but was dismissed on February 15, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 9 evidence, Eul evidence 1 to 4 (including each number, hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiffs' assertion

1) The apartment of the instant case, depending on the difference between the comparative apartment and the story, has different conditions in various aspects, such as sunshine volume, view right, privacy infringement of the side house, stairs noise, elevator noise, and the height of stairs walls. Since the first apartment after the first sale, it is difficult to know the similarity and difference with the comparable apartment of the comparative apartment, since the apartment of the instant case is used in its original form without any remodeling until now after the first sale, it cannot be seen that the sales price of the comparative apartment is an ordinary business example because the price sharply increased immediately after the government announced the measures for activation of real estate as of August 29, 2010, the sales price of the comparative apartment cannot be seen as an ordinary business example. However, it is unlawful to evaluate the sales price by deeming that the comparative apartment is identical or similar to the size, location, purpose and item of the apartment of the instant apartment at the time of the donation

2) Even if the Defendant’s taxation is lawful, it is reasonable that the Plaintiffs paid the officially announced value because there was no transaction data at all for 4 months at the time when the instant apartment was donated to the Plaintiffs. If the Defendant’s employee, on February 2, 2011, paid the corrected portion to a certified tax accountant representing the Plaintiffs in filing a gift tax return by the end of February, 201, he/she provided a verbal notification that there was no additional dues. This is against the principle of trust protection to deem the Plaintiffs as a bona fide payer and impose additional taxes.

B. Relevant statutes

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

1) The Seocho-gu Seoul Metropolitan City XXdong 70-dong 70-dong 207-dong is a Yer type structure centered on the central stairs and elevators (1-4, 5-8, and 9-12). Among them, the apartment of this case (604) is located in the nearest Ra in the central part, the comparative apartment (303) is located below the third floor of the neighboring Rain, and the size is the same.

2) The standard market price of the instant apartment and comparative apartment is as listed below.

3) The details of transactions for the apartment complex located in the same complex as the instant apartment complex and with the same area are as shown below.

4) On July 8, 2010, the E reported and paid gift tax to the Defendant by evaluating the value of donated property at KRW 000 when it received 804, located in the same Ra, such as the instant apartment, from the RaF.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 6, 8, Eul evidence Nos. 4 and 6, the purport of the whole pleadings

D. Determination

1) As to the first argument of the plaintiffs

The following points can be seen by adding the facts of the above recognition and the purport of the whole argument as well as the evidence mentioned above. ① The apartment of this case is the same as the comparative apartment of this case, and there is no difference in the location map because it is a neighboring apartment of this case, ② The apartment of this case is located near the central part of the building, and thus, it is likely that the apartment of this case can fall more than the next apartment of this case in terms of noise, heat, and privacy infringement. However, since the apartment of this case is 6 floors, it is more favorable than the comparison apartment of this case, and generally, it is difficult to view the location of the apartment of this case as the degree to deny the similarity between the comparative apartment of this case and the comparative apartment of this case. ③ The officially announced apartment of this case is higher than the comparison apartment of this case, ③ the difference between the apartment of this case and the price of the apartment of this case before and after the sale of the apartment of this case, and ④ the price of the apartment of this case is the same as the price of the apartment of this case before and after the sale of this case.

2) As to the second argument by the plaintiffs

In order to facilitate the exercise of the right to impose taxes and the realization of tax claims under the tax law, if a taxpayer violates various obligations, such as a tax return and tax payment, under the individual tax law without justifiable grounds, the taxpayer’s intentional or gross negligence is not considered (see, e.g., Supreme Court Decision 93Nu6744, Jun. 8, 1993). As seen earlier, in addition to the fact that the E donated subparagraph 804, located in the same apartment as the instant apartment on July 8, 2010 and assessed the value of the property at KRW 00 and reported and paid the gift tax to the Defendant, the mere fact that there was no transaction case for four months prior to the donation of the instant apartment, there is no justifiable reason to deem that the amount of tax to be paid falls short of the amount to be paid.

In addition, there is no evidence to prove that the defendant notified the plaintiffs that no penalty tax should be imposed through a certified tax accountant, and even if such notification was made, there is no evidence to deem that the plaintiffs engaged in any act based on the defendant's trust and trust in the preceding disposition. Therefore, the defendant's disposition of imposing additional tax cannot be deemed as contrary to

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit, and it is so decided as per Disposition.