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(영문) 택지조성사업시행자가 사업시행과정에서 단지내 토지중 끝부분에 있는 일부토지를 "매매"를 원인으로 남편명의로 그 소유권이전등기를 경료한 사실에 대하여 상속세법 제34조의 규정에 의한 증여세를 과세함에 있어 택지조성사
조세심판원 조세심판 | 1991-07-22 | 국심1991부0908 | 상증
[Case Number]

National Trial 1991bu0908 ( October 22, 1991)

[Items]

Donations

[Types of Decision]

Correction

[Summary of Decision]

88.1.15 The key land location was designated and announced as a specific area, and the 89.3.15 adjusted the 89.3.15 rate, so the calculation of the standard market price assessed by the rate applied to 89.9.28 under subparagraph (a) is reasonable.

[Related Acts]

Article 34 of the Inheritance Tax Act / [Presumption of Donation of Gift Tax] Article 5 of the Enforcement Decree of the Inheritance Tax Act

【Disposition】

corresponding to the 88 year in which the head of the Dong Tax Office has notified the claimant of October 16, 90.

Imposition of gift tax of KRW 38,959,50 and tax of KRW 7,083,540 on defense;

Land, forests and fields with two lots except OOOOOO in the Geum-dong, Busan Special Metropolitan City;

The value of the gift made to 307 square meters on the basis of the present rate 89.9.28

The method under Article 5 (2) 1 (a) of the Enforcement Decree of the Inheritance Tax Act

The evaluation shall be made and the tax base and amount shall be corrected.

【Reasoning】

1. Facts;

The claimant is a resident of the OOOOOOOO of the claimant in Busan Special Metropolitan City and the applicant's wife (hereinafter referred to as "OOOOOOOO") acquired 6,619 square meters for 88.9.10,000 square meters for 19 square meters and 307 square meters for two lots outside OOOOOOO located at the end of the complex in the process of implementing the housing site creation project (land category is forest, paddy and paddy, and adjacent to the ditch; hereinafter referred to as "sub-owned land") on the ground of "8.8.10.22, the claimant completed the registration of the ownership transfer on October 22, 88;

When the disposition agency calculates the cost per unit by taking an arithmetic mean of the total cost of construction works used to create neighboring OOs outside the claim and determines and notifies the gift tax of 38,959,500 won per unit and the tax amount of 7,083,540 won per unit in the year of 88 October 16, 90 as the gift tax of 38,959,50 won per unit and the tax amount of 7,083,540 won, the claimant files an appeal after filing an objection and filing an appeal of 90.1.24.24.

2. The claimant's assertion;

In the process of land development project, non-claim OO submitted a written request for gift tax to the disposition authority on Sep. 28, 89, the claimant recognizes that the act of real estate sale between husband and wife is subject to gift tax after the expiration of the due date for return of gift tax, and that the disposition authority calculated the gift value of the land of this case by applying the average of the total construction cost for the development project of neighboring land, or that the value of the land of this case cannot be considered as the market value at the time of donation under the Inheritance Tax Act, because the land of this case cannot be considered as the market value at the time of donation under Article 9 (2) of the Inheritance Tax Act and Article 5 (1) and (2) 1 of the Enforcement Decree of the Inheritance Tax Act.

3. Opinions of the Commissioner of the National Tax Service;

The relationship between the claimant and the non-claimO is simple, and the fact that the claimant has failed to file a gift tax return by the deadline for filing a gift tax return is known to the head of the claim. Thus, the non-claimO, the donor, acquired the land acquisition amount of KRW 1,493,00,00 as the income tax on the real estate sales business at KRW 6,619 square meters (the land acquisition amount of KRW 1,493,898,560, and the land development cost, etc. is KRW 133,898,560) and transferred the land to KRW 5,271 square meters until December 31, 88, and KRW 1,512,013,00 for KRW 1,512,00 for the income tax for the year of 888.

Therefore, it is argued that the initial disposition that the disposition agency assessed and imposed on the gift value on the basis of the actual acquisition cost is unreasonable.

4. Issues

The dispute over this case is that when the implementer of the housing site creation project imposes gift tax pursuant to Article 34 of the Inheritance Tax Act on the fact that a part of the land at the end of the land in the complex is registered under the husband's name due to the "sale" in the course of implementing the project, the assessment of the cost per unit is made from the total construction cost required for the housing site creation project, and the disposition of calculating the gift value of the land at issue based on it is reasonable.

5. Hearing and determination

Since the claimant has completed the registration of transfer of ownership on the land at issue on October 22, 888 on the ground of "8.10.8 transaction" from OO other than his wife, there is no dispute between the disposition agency and the claimant as to the fact that the claimant is deemed to have been donated the land at issue on the date of registration pursuant to Article 34 (Transfer of Spouse, etc.) of the Inheritance Tax Act.

First of all, the issue was the land category of the land at the time of October 22, 88, the transfer of ownership was registered under the name of the claimant, but the land category was changed to the site on April 19, 89, and the claimant was 89.9.28 as of October 22, 88, the deadline for the return of gift tax was 1,626,898,560 won (land purchase cost, 1,493,000,000 won, 13,33,898,560 won (land purchase cost, 1,493,000 won, 1,000 won for construction work, labor cost, 133,898,560 won). The claimant requested the disposition agency to assess the land on which the deadline for the return of gift tax has expired as the standard market price of taxation under the Local Tax Act (31,240,320 won) and request the disposition agency to impose gift tax on the land at the rate of 1, 251,53545 meters per 7.

On the other hand, the claimant argues that since the value of the donation adopted by the disposition agency cannot be considered as the market price, it should be corrected as the standard market price, while the disposition agency can regard the amount as the market price under Article 5 (1) of the Enforcement Decree of the Inheritance Tax Act.

Next, according to the provisions of Article 34-5 of the Inheritance Tax Act, which is the related Acts and subordinate statutes, "the provisions of Article 9 shall apply mutatis mutandis to the gift tax." In light of Article 9 (Evaluation of Value of Donated Property) of the Inheritance Tax Act as of October 22, 888, where the claimant has donated the land at issue, the value of donated property shall be based on the current status as at the time of donation, and the value of donated property which has not been reported under the provisions of Article 20 or has not been reported under the provisions of paragraph (1) shall be appraised at the time of imposing the gift tax notwithstanding the provisions of paragraph (1). Article 5 (1) of the Enforcement Decree of the same Act provides that "The value of donated property at the time of donation under the current status as at the time of donation under Article 9 of the Act or at the time of imposing the gift tax shall be appraised

"Appraisal of Land and Buildings"

(a)in a specific area determined by the Commissioner of the National Tax Service, the appraised value by multiple rates;

(b) provide that “The standard market price of taxation under the Local Tax Act shall be determined by the standard market price under the Local Tax Act in areas other than “A”.

In light of relevant Acts and subordinate statutes, exhibition facts

First, the claimant has failed to file a report within the prescribed period of gift tax return, and at the same time, filed a report on the fact that he/she received a donation under 89.10.28, and requested the disposition agency to levy gift tax by evaluating the key land at the standard market price of taxation under the Local Tax Act as of October 22, 88. Thus, the appraisal of the donated property should be assessed at the market price at the time of imposition that is not the date of donation pursuant to Article 9.2 of the Inheritance Tax Act, and at the same time, at the time of imposition, it is reasonable to determine that the disposition agency first recognized the donation pursuant to Article 5.7 of the Enforcement Decree of the Inheritance Tax Act as the market price at the time of the first imposition (Article 5.9.9.1

Second, in the valuation of donated property, the pertinent land has been registered for ownership transfer due to sale, but its substance does not constitute a sale price for the pertinent land. The disposal agency shall calculate the cost per square meter by dividing the total construction cost required for the creation of an OO's housing site by the total area of the land and adopt the amount calculated by multiplying that amount by the total area of the land. However, the amount calculated on the basis of the average cost required for the creation of a neighboring land's housing site shall not constitute the market price at the time of donation or imposition as provided by Article 5 (1) of the Enforcement Decree of the Inheritance Tax Act.

Therefore, since the Commissioner of the National Tax Service designated the location of the land at issue on January 15, 88 as a specific area and adjusted the rate on March 15, 89.3.15, it is reasonable to calculate the standard market price as the standard market price assessed by the rate applied to the rate applied to 89.9.28 (a) according to Article 5.2 (1) of the Inheritance Tax Act.

6. Conclusion

Since a request for a trial is deemed to be well-grounded as a result of the review, it shall be decided as ordered under Articles 81 and 65(1)3 of the Framework Act on National Taxes.

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