Cho High Court Decision 2008west 1874 (Law No. 25, 2008)

The court may recognize the retroactive appraised value as the market price.

The price assessed by the Korea Appraisal Board on the basis of the above donation date by the appraisal commission of the Korea Appraisal Board shall be deemed appropriate to be the market price as of the donation date, since the selection of comparative cases, the time adjustment, the comparison of regional and individual factors, etc., which have undergone the calculation process, are deemed appropriate.

The contents of the decision shall be the same as attached.

1. The Defendant’s imposition of the gift tax of KRW 22,798,980 on March 1, 2008, in excess of KRW 19,384,640 on the imposition of the gift tax of KRW 22,798,980 on the part of the 2006, shall be revoked.

2. The plaintiff (Appointed)'s remaining claims are dismissed.

3. The 80% of the costs of lawsuit shall be borne by the Plaintiff (Appointed Party) and the remainder by the Defendant respectively.

The Defendant’s disposition of imposition of KRW 22,798,980 on March 1, 2008 against the Plaintiff (Appointeds) and the Appointed Kim-won in 2006 shall be revoked.

1. Circumstances of the disposition;

가. 원고(선정당사자 이하 '원고'라고 한다) 및 선정자 김☆☆(이하 '선정자'라고 하며, 원고와 선정자를 함께 '원고 등'이라고 한다)은 2006. 12. 26. 원고의 장인이자 선정자의 아버지인 김★★로부터 서울 ●●●구 ○○○동 40-4 ◎◎아파트 3동 306호(이하 '이 사건 아파트'라고 한다)를 피담보채무 150,000,000원을 인수하는 조건으로 각 2분의 1 지분씩을 증여받은 후, 2007. 3. 14. 위 증여재산가액을 증여일 당시 기준시가인 487,000,000원으로 평가하고 위 평가액에서 위 피담보채무를 차감한 금액인 337,000,000원의 각 2분의 1에 해당하는 금액 168,500,000원을 각 과세표준으로 하여 증여세를 신고ㆍ납부하였다.

B. The defendant confirmed that the same direction and 205 Dong 205, which is the same area as the apartment complex of this case (hereinafter referred to as "non-affiliated apartment"), was traded in the same complex of this case on September 9, 2006, and that 694,000,000 won were traded, pursuant to Article 49 (1) and (5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the market price of the apartment of this case was KRW 694,00,000, which is the transaction price of comparative apartment, and notified the plaintiff et al. of KRW 22,798,980, which is the market price of the apartment of this case on March 1, 2008 (hereinafter referred to as the "disposition of this case").

C. On May 16, 2008, the Plaintiff et al. dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on May 16, 2008, but was dismissed on September 25, 2008.

[Ground for Recognition: Facts without dispute, Gap evidence 1, 2, 3, 12, Eul evidence 1, 2, 3, Eul evidence 4-1 through 7, Eul evidence 6, and the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's principal

(i)the first proposal;

As the Defendant did not discover the transaction value that can be seen as the market price of the pertinent apartment within 3 months before or after the date of donation of the instant apartment, the transaction value of the comparative apartment in excess of 3 months is recognized as the market price by applying the similar sale price stipulated in Article 49(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. However, since the above Enforcement Decree provision is an exception to the market price principle, it is not applicable only to the main sentence of Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and it is against the principle of no taxation without law to apply the transaction value exceeding the scope of 3 months as the similar sale price prescribed in the statutes, which is

(ii)the second place;

The defendant submitted false data to the effect that even though the apartment price of the apartment complex belonging to the apartment complex of this case has actually fallen from September 2006 to December 2006, the price of the apartment complex of this case was 30 million to 35 million won, even though the price of the apartment complex of this case has actually fallen from the price of 30 million to 35 million won, the Evaluation Deliberative Committee was not more than 3 million won. Based on such false data, the Evaluation Deliberative Committee had conducted the transaction of the apartment complex of this case on September 2006 and around December 2006, which was the time when the apartment house of this case was actually sold, and there was a big difference between the price and the price at the time of the donation of this case, and there was no special circumstance between the time of the transaction and the base date, regardless of the difference in the living environment of the apartment complex of this case, the transaction price of the remaining apartment complex of this case was less than the normal sale price at the time of the transaction (in particular, since the comparison apartment of this case is less than the price at the price at the time of this case).

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(i)the determination on the first proposal;

In accordance with Article 60(1) and (2) of the Inheritance Tax and Gift Tax Act and Article 49(1) and (5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter the same shall apply), the value of donated property shall, in principle, be based on the market price as of the date of donation. However, where a free transaction is made between many and unspecified persons and there is a fact that the relevant property is traded within 3 months before or after the date of donation for other properties identical or similar to the relevant property, the transaction price may also be deemed the value of the said donated property and gift tax may be imposed on the basis of such fact. Even if a sale is made during a period that does not fall under the evaluation period, when it is deemed that there is no special reason for the price fluctuation in the relevant sale, etc. in consideration of the passage of hours from the evaluation date to the time of transaction, the value of the relevant donated property may be recognized through consultation with the Evaluation Deliberation Committee. Unlike Article 49(5) of the Enforcement Decree of the same Act, it is difficult to find any special reason within three months.

Therefore, this part of the plaintiff's assertion is without merit.

2) Judgment on the second argument

A) According to the plaintiff's evidence Nos. 2, 3, 4-1 through 7, and Eul evidence Nos. 6, the above apartment price was 0,000 won and 60-60,000 won and 605-60,000 won and the above apartment price was 60,000 won and 60-7,000 won and 60-6,000 won and 60-7,000 won and 60-7,000 won and 60-6,000 won and 60-7,000 won and 60-7,000 won and 60-6,00 won and 60-7,00 won and 60-7,00 won and 60-6,005 won and 4,00-6,00 won and 60-7,00 won and 60-7,06,00 won of the above apartment price.

B) Meanwhile, the main text of Article 60(1) of the Inheritance Tax and Gift Tax Act provides that the value of the property on which the inheritance tax or gift tax is levied under this Act shall be deemed to be based on the market value as of the date of commencing the inheritance or the date of donation. Article 60(2) of the same Act provides that the market value under paragraph (1) of the same Article includes the value generally deemed to be established in the case of free transactions between many and unspecified persons, and is recognized as the market value under the conditions as prescribed by the Presidential Decree, such as the expropriation, public sale price, appraisal price, etc. under the conditions as prescribed by the Presidential Decree. Since the literal text of Article 60(2) of the Inheritance Tax and Gift Tax Act does not limit the market value to those recognized as the market value under the conditions as prescribed by the Presidential Decree, each subparagraph of Article 49(1) of the Enforcement Decree of the same Act by delegation of the same Act does not include a representative case where the market value is deemed to be the market value of donated property. On the other hand, since the market value includes an objective exchange price by means of transaction.

In light of the above legal principles, the appraisal price of the apartment of this case by the Korea Appraisal Board entrusted by the Korea Appraisal Board as of the above donation date shall be deemed appropriate as the market price as of the above donation date of the apartment of this case, considering that the selection of comparative cases, time adjustment, regional factors and individual factors are all followed in the calculation process, etc., and thus, the market price shall be deemed as 663,00,000 won.

Therefore, when calculating a legitimate amount of gift tax with the market price of KRW 663,00,00 as of the date of donation of the apartment of this case as of the date of donation of this case, it is calculated as 19,384,640 won for the plaintiff et al., and thus, the amount exceeding the above amount among the dispositions of this case should be revoked illegally.

3. Conclusion

If so, the plaintiff's claim is reasonable within the above scope of recognition and the remaining claims are without merit.