Madern 2013bu 2890

I see that the appraisal value of one appraisal institution is "the market value in an objective and reasonable manner";

Even if the appraisal is assessed by a reliable appraisal institution, it can be seen as the market price if it was assessed by objective and reasonable methods of evaluating the market price.

Article 60 of the Inheritance Tax and Gift Tax Act

2013Guhap447 Revocation of Disposition of Imposing capital gains tax

OO

OO

April 18, 2014

May 16, 2014

1. The Defendant’s imposition disposition of capital gains tax of 000 won in the year 2012 against the Plaintiff on January 8, 2013 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

On May 22, 2009, the Plaintiff completed the registration of transfer of ownership and shares on August 12, 2009, for the share of 1/2 of the above land (hereinafter referred to as "the above land and share of each real estate of this case") in 00 00 - 00 - 00 - - 00 - 297.9 m297 m2,000 and its ground buildings (the underground first floor, 4 - total floor area, 1,051 m2 m2) (hereinafter referred to as "the above land and share of this case"). The Plaintiff sold each of the instant real estate to BB on April 20, 2012 and completed the registration of transfer of ownership and share of each of the instant real estate on June 27, 2012.

In addition, on August 31, 2012, the acquisition value of each of the instant real estate was determined as KRW 000,000, which was assessed by the appraisal report (hereinafter “zzz”) on August 25, 2009, and the Defendant reported and paid KRW 000,000,000, capital gains tax on each of the instant real estate to the Defendant. However, on the ground that the appraisal value assessed by one appraisal institution on January 7, 2013 cannot be deemed as the acquisition value of each of the instant real estate, the Defendant calculated KRW 00,00, which is the standard market value of each of the instant real estate, as the acquisition value of each of the instant real estate, to notify the Plaintiff of KRW 00,000, capital gains tax excluding the portion paid by the Plaintiff, and the Plaintiff was notified of it on January 8, 2013 (hereinafter “instant disposition”). The Plaintiff received an objection from the Defendant on February 14, 2013, which was dismissed on March 1316, 2013

2. Summary of the parties' arguments;

A. The plaintiff

According to Article 97(1)1 of the Income Tax Act, Article 163(9) of the Enforcement Decree thereof, and Articles 60 and 61 of the Inheritance Tax and Gift Tax Act, the acquisition value of assets acquired through inheritance, such as each real estate of this case, shall be based on the market price as at the date of commencing the inheritance. In exceptional cases where it is difficult to calculate the market price, the reliable appraisal institution’s appraisal value may be deemed the market price if it is assessed in an objective and reasonable manner. However, the reliable appraisal institution’s appraisal value may be deemed the market price if it is assessed by means of an objective and reasonable method, and Article 60(2) of the Inheritance Tax and Gift Tax Act and Article 49(1)2 of the Enforcement Decree thereof, one of the cases where the average value of appraisal values appraised by two or more reliable appraisal institutions can be deemed the market price, are merely examples of cases where the market price can be recognized as the market price. Therefore, the disposition of this case is unlawful on the sole basis that there is no appraisal assessed by two or more appraisal institutions.

B. Article 97(1)1 of the Defendant Income Tax Act, Article 163(9) of the Enforcement Decree thereof, Article 60 of the Inheritance Tax and Gift Tax Act, and Article 49 of the Enforcement Decree thereof are limited to cases where the market price of inherited property can be recognized. However, in cases where there are appraisal values assessed by more than two reliable appraisal institutions under Article 49(1)2 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the average amount thereof may be deemed the market price. As such, the appraisal value presented by the Plaintiff may not be deemed the market price. Moreover, it cannot be readily concluded that the appraisal value was conducted by the Plaintiff in the course of offering each of the instant real estate as collateral, and that the appraisal value was assessed by an objective and reasonable method. Accordingly, since the appraisal report presented by the Plaintiff alone is difficult to calculate the market price of each of the instant real estate, the instant disposition imposing capital gains tax by determining the acquisition price is justifiable.

3. Determination

(a) Method of calculating the acquisition value of inherited property;

According to Article 97 (1) 1 of the Income Tax Act, in calculating the transfer income tax, the acquisition value shall be the actual transaction value entered in acquiring the assets, but where it is impossible to verify the actual transaction value, the value assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as to the inherited assets pursuant to Article 163 (9) of the Enforcement Decree of the Income Tax Act shall be the actual transaction value. Article 60 of the Inheritance Tax and Gift Tax Act provides that the value of the property subject to inheritance tax shall be the market value as of the commencement date of the inheritance, and where it is difficult to calculate it, the value shall be assessed by the methods prescribed in Articles 61 through 65. In addition, Article 60 (2) of the Inheritance Tax and Gift Tax Act provides that "the market value under paragraph (1) shall be the value generally deemed to be established where transactions are made freely between many and unspecified persons, and Article 49 (1) 2 of the Enforcement Decree thereof provides that "Where the actual transaction value of the property is appraised by an appraisal institution within six months before or after the appraisal date determined by Ordinance of the appraisal value."

However, Article 60 (1) of the Inheritance Tax and Acquisition Tax Act provides that the market price at the time of commencing the inheritance shall be the value of the property, and Article 60 (2) provides that "the market price shall be the value that is generally recognized as being established when transactions are made freely between many and unspecified persons" and "including the value that is recognized as the market price, as prescribed by Presidential Decree, such as the expropriation price, public sale price, and appraisal price."

In light of the language and text of the above provision, the market value under Article 60 of the Inheritance Tax and Gift Tax Act refers to the objective exchange value formed through normal transactions, and the market value under Article 60(2) of the Enforcement Decree may be recognized as the market value under Article 49 of the Enforcement Decree, pursuant to

In addition, in light of the content defined in the market price in the Inheritance Tax and Gift Tax Act, appraisal by a reliable appraisal institution may be deemed as the market price, even if it is evaluated by an objective and reasonable method (see, e.g., Supreme Court Decision 2000Du5098, Aug. 21, 2001). (b) In a case where the illegality of the instant disposition is recognized, the Plaintiff reported and paid the transfer income tax by designating the acquisition value of each of the instant real estate as KRW 000 on August 25, 2009 by the appraisal report of zzzzzz, and the Defendant asserted that the said appraisal report can be deemed as the market price only if there is an appraisal assessed by two or more appraisal institutions on each of the instant real estate, and that it cannot be deemed as the market price on the grounds that the said appraisal report was made in the process of offering each of the instant real estate as collateral, and that it cannot be deemed as the market price on each of the instant real estate.

However, as seen earlier, even if the appraisal value of one reliable appraisal institution is assessed by an objective and reasonable method, it can be deemed as the market price if it was assessed by the market price. As such, zzzz based on the appraisal statement submitted by the Plaintiff constitutes a reliable appraisal institution under the Public Notice of Values and Appraisal of Real Estate Act (Article 15(1) of the Enforcement Rule of the Inheritance Tax and Gift Tax Act). The said appraisal value is the price calculated within the scope of the cost method, profit method, and comparison method under Article 31 of the Public Notice of Values and Appraisal of Real Estate Act, and Article 11 of the Rules on Appraisal and Appraisal of Real Estate, which is the most small and medium price within the scope of the supply price and the cost method having the characteristics of the supply price (Evidence A2), and it should be deemed that the acquisition price of the real estate in this case should be determined as the acquisition price of the real estate in this case by the appraisal method of the xxx appraisal corporation as of August 24, 209, solely on the ground that the appraisal value of each of the real estate in this case was assessed.

4. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.