The case holding that a disposition imposing capital gains tax is unlawful, inasmuch as the normal price of the subject matter of transfer at the time of inheritance exceeds the standard market price, and the standard market price at the time of inheritance exceeds the actual transfer price, in view of the fact that the highest amount of creation of collateral security at the time of inheritance, the appraised value, and the current appraised value at the time of inheritance are deemed to be the acquisition value of the subject matter of transfer, and that the disposition imposing capital gains tax is not unlawful,

The case holding that in the case of transferring a real estate acquired by inheritance, the normal price at the time of inheritance shall be deemed to be the acquisition value of the object of transfer, and in view of the fact that the maximum amount of creation of collateral security at the time of inheritance, the appraised value, and the current appraised value at the time of inheritance are more than the standard market price at the time of inheritance, i.e., the acquisition value exceeds the standard market price at the time of inheritance, and as long as the standard market

[1] Article 96 subparagraph 1 (a) of the former Income Tax Act (amended by Act No. 5580 of Dec. 28, 1998), Article 97 (1) 1 (a) and the proviso of Article 100 (1) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15969 of Dec. 31, 1998), Article 89 (1) 3, Article 163 (1) 1, and Article 166 (1) 3 (see current deletion) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5580 of Dec. 30, 1998) (see current Article 96 (1) 7 of the Inheritance Tax and Gift Tax Act), Article 96 (1) 1 (a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5193 of Dec. 30, 196) (see current Article 16 (2) of the former Inheritance Tax and Gift Tax Act)

Supreme Court Decision 96Nu860 Decided February 11, 1997 (Gong1997Sang, 1274), Supreme Court Decision 95Nu17960 Decided March 28, 1997 (Gong1997Sang, 1274), Supreme Court Decision 95Nu6090 Decided June 10, 1997 (Gong1997Ha, 2052), Supreme Court Decision 97Nu14187 Decided November 14, 1997 (Gong197Ha, 3905), Supreme Court Decision 98Du28927 Decided September 28, 1998 (Gong197Ha, 3905)

Macio-research

Head of the Daegu Tax Office

Daegu District Court Decision 2000Gu4492 delivered on March 8, 2001

1. The judgment of the court below is revoked.

2. The Defendant’s disposition of imposition of capital gains tax of KRW 63,685,980 against the Plaintiff on January 3, 200 shall be revoked.

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

[The purport of the claim and appeal] The text of the appeal is as follows.

1. Details of the instant disposition

The following facts are not disputed between the parties, or found by Gap evidence 1-2, Gap evidence 2, Eul evidence 1-2, Eul evidence 3-1, and Eul evidence 3-2, and there is no counter-proof.

A. On September 30, 1989, the Plaintiff, the husband of the non-party 1-14 square meters of land 12,551 square meters, 1-14 square meters of land 12,551 square meters, 314 square meters of land for the same Ri 1-127 and 5,363.67 square meters of buildings on both sides (hereinafter “the instant land and buildings”) transferred the said shares to the non-party 2 corporation on November 9, 1998. On November 9, 1998, the Plaintiff transferred the said shares to the non-party 2 corporation. On November 9, 1998, the Plaintiff transferred the said shares (hereinafter “the subject matter of transfer”) to the non-party 450,000,000 won, the actual transaction value, and its acquisition value to the non-party 539,746,605 won, which are the standard market value, and submitted the acquisition value of the above real estate as documentary evidence.

B. On August 19, 199, the Defendant confirmed that the actual transfer value of the subject matter of transfer of this case was the same as the reported amount, and on January 3, 200, the transfer value was 450,000,000,000 as the actual transaction value pursuant to the proviso of subparagraph 1 of Article 96 of the former Income Tax Act (amended by Act No. 5580, Dec. 28, 1998; hereinafter referred to as the “Act”); the acquisition value was 10,00,000,000,000,000 as the actual transaction value; the acquisition value was 15969; hereinafter referred to as the “Decree”); Article 166(1) and (4)3; (2)3; (3); (4); (2) subparagraph 2 (a) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15969, Dec. 31, 1998; hereinafter referred to as the “Decree”); and (3); and (4); (3); (5) 7); and (4); and (5)

C. The Defendant found that it erred in recognizing the standard market price, necessary expenses, reporting, and additional payment for unfaithful payment at the time of transfer and acquisition of the subject matter of this case at the time of the request for review in relation to the above disposition of taxation, and recognized the acquisition value of the subject matter of this case as KRW 247,725,030 (actual transfer value 450,000,000 x 54,644,305,300 x 989,362,830 won at the time of transfer at the time of acquisition). The Defendant corrected the disposition of this case by calculating the necessary expenses as KRW 28,307,954, gains on transfer, and gains on transfer as KRW 173,967,016, and excluded the initial notified tax amount as KRW 63,685,980 on April 7, 200 (hereinafter “the disposition of this case”).

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful on the grounds of the above disposition and related Acts and subordinate statutes. The plaintiff asserts that the defendant's imposition of inheritance tax on the inheritance of the land and buildings of this case on May 1, 1991 is unlawful against the principle of substantial taxation by recognizing the value of the land and buildings of this case according to the value assessed by the maximum debt amount of the right to collateral security pursuant to the old Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) and imposing the inheritance tax on the plaintiff on the transfer of the object of this case acquired by inheritance, as the case was finalized in the Daegu High Court 92Gu788 on May 1, 199.

B. Relevant statutes

[Attachment] The entry is as follows.

(c) Markets:

(1) The fact that the Plaintiff submitted a real estate sales contract, etc. and reported the actual transaction price at the time of transfer with the evidentiary document as to the transfer value while making the transfer value. According to the evidence Nos. 1, 2, and 2, the Plaintiff reported that the acquisition price of the object of transfer of this case should be deemed the amount of assessment at the time of commencement of inheritance rather than the standard market price when receiving the notice of investigation prior to the determination of transfer income tax of this case from the Defendant before the determination of transfer income tax of this case and making a request for review of the legality of taxation, and that the acquisition price of the object of transfer of this case should be deemed the amount of assessment at the time of commencement of inheritance. ② Pursuant to Article 166(2)3(a) of the Decree as to the object of transfer of this case, the conversion method under Article 166(2)2(a) of the Decree 】 (the actual transaction price at the time of transfer x the standard market price at the time of acquisition / the standard market price at the time of transfer.

(2) However, according to the proviso of Article 97 (1) 1 (a) of the Act, Article 163 (1) 1 of the Decree, and Article 89 (1) 3 of the Decree, the actual transaction price required to acquire inherited property refers to the normal price as at the time of acquisition, and the normal price refers to the market price, actual transaction price, appraisal price, etc. (see Supreme Court Decision 92Nu15352 delivered on March 26, 1993, etc.). Under the principle of no taxation without law or prohibition of excessive taxation under the Constitution, the amount of capital gains tax shall not exceed the scope of gains on transfer based on the actual transaction price (see Supreme Court Decision 98Du8827 delivered on September 22, 198, etc.).

In full view of the purport of the pleadings, Gap evidence Nos. 1-2, 3, and 4, the defendant imposed inheritance tax on the heir, including the plaintiff, on May 1, 1991 on the inherited property, including the land and the building of this case by assessing 2,90,607,58 won as the inheritance value of the land and the building of this case. ② The heir, including the plaintiff, filed an administrative litigation seeking cancellation of the above inheritance tax. The court held that there is insufficient evidence to acknowledge the above disposition as to the assertion that the actual value of the land and the building of this case is below the above maximum amount of transfer value, and that the transfer value of the land and the building of this case is below the above maximum amount of transfer value of 30 billion won, and that the above judgment (this court92Gu7888, 2006, 300 won, 300 won or more, 400 won or more, 300 won or more, 506 won or more, 190

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the grounds of its reasoning. Since the judgment of the court below is unfair on the grounds of its conclusion, the judgment of the court below shall be revoked, and the defendant revoked the disposition of capital gains tax of 63,685,980 won against the plaintiff on January 3, 200, and the costs of the lawsuit shall be borne by the defendant who has lost all the first and second trials.

Judges Park Tae-ho (Presiding Judge)