early 2010west0282 ( October 23, 2010)

It should be viewed as the market price at the time of acquisition of the appraisal value assessed retroactively by the court commission.

If there is no exchange price through transaction, the appraisal price by a reliable appraisal institution can be seen as the market price, and the price does not vary even if the price is based on retroactive appraisal, and the appraisal price which is assessed retroactively by the court at its request shall be regarded as the market price at the time of acquisition.

detailed and disposition of transfer 2010Gudan1187

XX Kim

O Head of tax office

May 4, 2011

July 20, 2011

1. The Defendant’s imposition of capital gains tax of KRW 72,758,700 for the year 2008 against the Plaintiff on December 1, 2009 exceeds KRW 8,661,750, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One tenth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of capital gains tax of KRW 72,758,700 against the Plaintiff on May 29, 2009 (which appears to be a clerical error in December 1, 2009) is revoked.

1. Details of the disposition;

A. As the deceased on November 1, 2007, the non-party 1 and the non-party 2 (hereinafter referred to as the "Plaintiff, etc.") succeeded to No. 101, No. 101, No. 201, No. 301, No. 501, No. 501 (hereinafter referred to as the "non-party 1'), among multi-household houses on the 1-20 ground of Seoul XX-dong 3, from among multi-household houses on the 4th floor of 1-20.

B. After holding the instant real estate thereafter, on August 7, 2008, the Plaintiff et al. transferred the instant real estate to Non-Party 380,000,000 won, and on May 29, 2009, the Plaintiff et al. reported to the Defendant on May 29, 2009 that the transfer value is KRW 380,000,000 according to the actual transaction amount, and the acquisition value is KRW 395,00,000 that was reported at the time of filing and paying the inheritance tax base.

C. As to the transfer of the instant real estate, the Defendant recognized the transfer value of KRW 380,00,00 as is, but the acquisition value was determined as follows: (a) Article 163(9) of the Enforcement Decree of the Income Tax Act; and (b) Article 61(1)4 and (7) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter the same shall apply); (c) Article 61(1)7 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter the same shall apply); and (d) Article 165,00,000, the sum of the common home prices (lease deposit) of the instant real estate at the time of the commencement of the inheritance as of December 1

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 6, 7 (including paper numbers; hereinafter the same shall apply), Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

As of January 1, 2007 and January 1, 2008, because the market price of the instant real estate has not been changed due to the reason that the apartment price of the instant real estate did not change, etc. as of January 1, 2008, even if the transfer of the instant real estate was made at the expiration of six months from the commencement date of the inheritance, the transfer value of the said real estate can be deemed as the acquisition value at the commencement date of the inheritance, and even if not, even if not, the Plaintiff shall be deemed as the acquisition value of the instant real estate, which is the average value of the value appraised by requesting an appraisal to the appraisal corporation on July 13 and 14, 2009 and by requesting the appraisal corporation to conduct an appraisal to the appraisal corporation at △△△△, the acquisition value of the instant real estate shall be deemed as KRW 350,000,000, which is the appraised value by the entrustment of market value appraisal to the appraisal

Therefore, without recognizing the transfer value or appraised value of the instant real estate as the actual acquisition value of the instant real estate, the instant disposition taken by calculating the acquisition value of the said real estate as a supplementary assessment method pursuant to Article 163(9) of the Enforcement Decree of the Income Tax Act and Article 61(1)4 and (7) of the former Inheritance Tax and Gift Tax Act is unlawful

(b) Related statutes;

Attached Table 1 shall be as stated in the relevant statutes.

C. Determination

(1) Article 60(1) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter the same) provides that "the value of property on which gift tax is levied shall be the market price as of the date of donation; "The market price shall be the value which is generally recognized as being established if there are free transactions between many and unspecified persons and which is recognized as the market price under the conditions as prescribed by Presidential Decree, such as expropriation and public sale price and appraisal price." Paragraph (3) of the same Article provides that "if it is difficult to compute the market price, the appraised value shall be based on the methods prescribed in Articles 61 through 65 in consideration of the type, size, transaction circumstances, etc. of the relevant property; Paragraph (1) of Article 49 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 22042, Feb. 18, 2010; hereinafter the same shall apply)" shall be one of the following appraisal values or one of the appraisal prices before and after six months (3 months before or after the appraisal prices.

In light of the above provisions, the acquisition value of the instant real estate should first be calculated at the market price pursuant to Article 60(1) and (2) of the former Inheritance Tax and Gift Tax Act, and only when it is difficult to calculate the market price, it should be calculated as a supplementary assessment method pursuant to Articles 60(3) and 61 through 65 of the former Inheritance Tax and Gift Tax Act.

(2) Therefore, in case of calculating the acquisition value of the instant real estate at the market price pursuant to Article 60(1) and (2) of the former Inheritance Tax and Gift Tax Act, whether the transfer value of the instant real estate can be deemed the market price at the time of the commencement of the inheritance can be seen as the market price at the time of the commencement of the inheritance, the following circumstances, namely, ① the time of transfer of the instant real estate, which are acknowledged by comprehensively considering the following circumstances, whether the transfer value of the instant real estate can be seen as the market price at the time of the commencement of the inheritance

The sale contract date is August 7, 2008. The sale contract date is from July 22, 2007, when six months or more elapsed from the commencement date of the inheritance of the above real estate, and it does not fall within six months before or after the commencement date of the inheritance (the commencement date) as of the market price stipulated in Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. ② The market price of the above real estate as of November 1, 2007, on the ground that there was no change in the apartment price, is difficult to view that the market price of the above real estate as of August 7, 2008, which was the commencement date of the inheritance, is the same as that of August 7, 2008, which was the transfer date of the above real estate. ③ Considering the fact that the plaintiff requested an appraisal appraisal corporation on July 13 and 14, 200 and 35,000 won, 300 won at the commencement date of the inheritance, 3000 won at the market price.

(3) Furthermore, we examine whether the appraisal price by an appraisal corporation can be deemed as the market price at the time of commencing the inheritance.

In the event that transferred assets are inherited and the transfer income tax is to be imposed based on the actual market price at the time of the commencement of the inheritance, even if the tax authority imposed the transfer income tax by the supplementary assessment method on the grounds that it is difficult to assess the market price at the time of the commencement of the inheritance of the relevant assets, the determination of illegality of taxation should be made on the basis of whether the market price at the time of the commencement of the inheritance of the relevant assets is exceeding the reasonable tax amount after calculating the reasonable transfer margin and the tax amount by the market price at the time of the conclusion of the fact-finding proceedings in the lawsuit seeking revocation of the taxation (see, e.g., Supreme Court Decision 2005Du204356, Sept. 30, 2005).

(1) The Plaintiff’s appraisal value of the instant real estate assessed by requesting appraisal to the relevant △△ Appraisal Corporation and the competent ○ Accounting Corporation is KRW 355,00,000,000 each, and the Plaintiff’s appraisal value of the instant real estate was 351,00,000,000, which was assessed by requesting appraisal to the said △△△ Accounting Corporation and assessed by the competent △△△△△△△△ Accounting Corporation. As seen earlier, among them, the fact that the appraisal value of the instant real estate was 350,00,000,00 was assessed by the most objective and reasonable method. Of them, when calculating the reasonable amount of capital gains tax from the transfer of the instant real estate based on the appraisal value at the time of the △△△ Accounting Corporation’s appraisal value, the Plaintiff’s assertion on

3. Conclusion

Therefore, the part of the disposition of this case exceeding KRW 8,661,750 of the legitimate capital gains tax amount should be revoked as unlawful. Thus, the plaintiff's claim is accepted within the scope of recognition as above, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.