Seoul High Court 2012Nu38468 ( October 16, 2014)

The early 201 middle 2547

(C) An appraisal under the Act on the Urgency of Trials shall not be deemed a legitimate appraisal method.

(H) Although the summary of the right to move into a cooperative of this case cannot be deemed to have no value of property of the right to move into a cooperative of this case, the method of appraisal under the Act on the Estimated Cost Rates cannot be

Article 60 of the Gu, Inheritance Tax and Gift Tax Act

2012Nu38468 Revocation of Disposition of Revocation of Inheritance Tax Imposition

00 00 080

Head of the High Tax Office

Suwon District Court Decision 2012Guhap572 Decided November 13, 2012

September 4, 2014

October 16, 2014

1. Upon receipt of a claim for change in exchange at the trial, the imposition of KRW 39,505,676 among the imposition of KRW 195,05,851,854 of the inheritance tax on November 7, 2013 by the Defendant against Plaintiff 0A; KRW 34,874,273 of the imposition of KRW 172,185,176 of the inheritance tax; KRW 43,347,684 of the imposition of KRW 8,79,612 of the imposition of KRW 8,779,612 of the inheritance tax on Plaintiff 00, and KRW 30,666,07,070 of the imposition of KRW 82,64,617, and KRW 82,6179, and KRW 779,586,5685,1567, among the imposition of KRW 157,963 of the inheritance tax on Plaintiff 0E.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

Paragraph 1 is the same (the plaintiff changed the claim in an appellate court to exchange it as above).

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Details of the disposition;

A. The Plaintiffs are the spouses and children of the MediationA (hereinafter “the deceased”) that died on April 29, 2009.

나. 원고들은 2009. 10. 30. 상속재산 중 00 00구 00동 37-13, 37-38, 37-123, 37-129 토지 및 그 지상 건물(이하 '00동 부동산'이라 한다)의 가액을 합계 552,850,000원으로, 지목이 도로인 00 00구 00동 1557-43, 1562-36, 1562-37 토지의 가액을 합계 ０원으로 하여 상속세과세표준 신고를 마치고 세액 13,820,000원을 자진납부하였다.

C. However, unlike the plaintiffs' above report, the defendant deemed that the value of 00 real estate was calculated on October 2007 with respect to the above real estate after consultation with the Deliberation Committee on the Evaluation of Unlisted Stocks of the Central Tax Office (hereinafter referred to as "the management disposition plan in this case"), and the defendant was calculated on October 23, 2007 by 1,725,275,50 won (the assessed value on each appraisal report prepared on October 23, 2007 by CC appraisal corporation on October 22, 2007, and hereinafter referred to as "previous appraised value"); and ② The right to redevelopment 00 real estate under the Urban Environment Rearrangement Project Management and Disposal Plan (hereinafter referred to as "the management disposition plan in this case") approved on March 14, 2008, under the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 16, 2010; hereinafter referred to as the "former Inheritance Tax Act").

Under the premise that "right to acquire real estate" under Article 61 constitutes "right to acquire real estate", the value of the right to be acquired by the plaintiffs according to the management and disposal plan of this case was 1,076,076,882,462 won subtracting the appraised value of the above (1,725,275,500 won) from the appraised value of the previous asset of 1,725,275,50 won, and ③ the above 00 Dong Dong 157-43, 1562-36, 1562-36, 1562-37 was assessed as KRW 93,342,80 on January 3, 2011 on the ground that the plaintiffs omitted a report on the difference between the value of the above (1) through (3) and the reported value.

After that, the defendant deemed that the plaintiffs' property inherited in relation to 00 real estate constitutes "right to acquire real estate as a whole" and corrected the value of the above (i) and (ii) the sum of the amounts, which are the 2,802,157,962 won (hereinafter "the amount of the right in this case") which is the amount of the rights acquired by the plaintiffs according to the management and disposition plan of this case (However, since the value of inherited property is not changed accordingly, there was no change in the amount of inheritance tax

D. On April 18, 2011, the Defendant reduced the amount of KRW 89,152,353 out of KRW 845,851,334 of the above inheritance tax (this amount of inheritance tax was KRW 756,698,981 (= KRW 845,851,334-89,152,353)). On November 2, 2013, the above amount of KRW 00-43,1562-36,1562-37, and KRW 93,342,80 of the above amount of inheritance tax (the above amount of inheritance tax was 714,14,108,981, which was 42,57,57,9716-136,75,747,975,75,719-16,97,75,716,719,757).

Facts without any dispute over recognition, Gap evidence Nos. 3 and 5, Eul evidence Nos. 1, 2, 4 through 6, 8, 15 through 17, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) With respect to the above 00 real estate, the plaintiffs' inherited property is not the right to acquire the real estate, but the "real estate" itself. Each appraisal report by the (State)A Evaluation Corporation and (State)CC Appraisal Corporation prepared on October 2007 with respect to the above 00 real estate is not prepared within 6 months before and after the base date of appraisal, and it cannot be deemed that there were no special circumstances as to price fluctuation in the above 00 real estate after the preparation of each appraisal report. Thus, the appraised value of the previous property, which is the average value of each of the above appraisal values, shall not be deemed as the market value of the above 00 real estate. Further, only with the approval of the management and disposal plan of this case, the rights recognized thereby cannot be deemed as the "right to acquire the real estate" under Article 61 of

Even if the right recognized by the management and disposal plan of this case constitutes the right to acquire real estate, recognizing the amount of this case calculated by multiplying the appraised value of 00 real estate by the proportional ratio is the market price of the right recognized by the management and disposal plan of this case as the market price of the right cannot be allowed as there is

Therefore, it is illegal that the part concerning the 00-time disposal of real estate was done on a different premise.

2) 00 real estate is de facto road and thus its value should be evaluated as '0 won'. Nevertheless, the instant disposition is unlawful by calculating the value of 00 real estate as 1,191,800 won.

(b) Related statutes;

Attached Form 3 is as listed in the relevant statutes.

C. Determination

1) As to the first claim of the plaintiffs (00 registered real estate portion)

A) Whether the plaintiffs' inherited property is "right to acquire real estate" or "right to acquire real estate"

Comprehensively taking account of the overall purport of the arguments in the statements in Gap evidence Nos. 9 through 11, 16, 18, and 20, the real estate of 00 real estate is incorporated into the urban environment improvement zone of 00 Dong No. 2007-52, Sept. 21, 2007, which is the public notice of project implementation authorization for the urban environment improvement zone of 00 Dong No. 4, which is the public notice of project implementation authorization for the urban environment improvement zone of 00 Dong No. 4, which is the urban environment improvement project in the above improvement zone, and the fact that the urban environment improvement project association of 0 Dong No. 4, which implements the urban environment improvement project in the above improvement zone (hereinafter referred to as the "non-party association") has obtained the approval of the management and disposal plan of this case from the head of 000/300,

According to the above facts of recognition, since the deceased who provided 00 real estate to the non-party union acquired the right to purchase the real estate to be sold under the authorization of the management and disposal plan of this case, it is "the right to acquire the real estate" in relation to 00 real estate (see Supreme Court Decision 2012Du18615, Jun. 12, 2014).

B) In full view of each statement in Eul evidence Nos. 4 through 6 and the purport of the entire pleadings, 2,802,157,962 won is calculated by multiplying the appraised value of the previous assets by 1,725,275,500 won, and the above proportion of 162.418% can be acknowledged in the manner as follows.

The calculation method of the proportional rate shall be the method of calculating the proportional rate.

(1) The total estimated amount of the sites and building facilities after the completion of the project: 763,240,322,50 won.

(2) Total project cost: 443,300,484,046 won.

③ 분양대상자의 종전 토지 및 건축물의 총가액 :\u3000１９６、９８５、４５６、３２５원

(4) Maximum rate: [(1)-2] 】 】 100 = 162.418%

However, the value of the instant property calculated by the foregoing method cannot be recognized as the market price of the 00 or more inherited property for the following reasons (see Supreme Court Decision 2012Du18615, Jun. 12, 2014).

(A) There is no provision that can justify the assessment of the value of inherited property by applying the proportionality ratio.

(B) The proportional rate is the amount calculated by dividing the total project area from the appraised value of land and buildings after the completion of the project as the assessed value of the previous land and buildings. This is merely the estimated value for enabling development gains arising from the completion of the urban environment rearrangement project.

(C) Since the proportionality is used in figures to present a standard for the cost-bearing so that landowners, etc. in a rearrangement project zone can decide whether to participate in the project, it cannot be said that it is appropriate to use the proportionality to calculate the market price of inherited property, which differs from those of wood and function, and it is difficult to readily conclude that the method of calculating the proportion is objective and reasonable.

(D) After the completion of the project, which serves as the basis for calculating the proportional rate, the appraised value of the land and buildings may be considerably different depending on the business fluctuations, and the total project area may also be increased or decreased due to the change of the project plan or the increase in the cost due to the business delay.

(E) Therefore, the method of multiplying the assessed value of the previous asset by the proportional rate is not an objective and reasonable method for calculating the market value of the 00 inherited property.

(2) In full view of the purport of each appraisal commission with respect to (B)B appraisal corporations and (D) DD appraisal corporations, the Defendant presented as auxiliary reference materials to the effect that the value of the instant property is reasonable as the market price of 00 or more inherited property (the Defendant asserted as such in the document before October 7, 2014, which was submitted after the conclusion of the trial proceedings). According to the court’s appraisal commission, BB appraisal corporation applied for the market price appraisal of 00 or more inherited property in this court. As a result, (B) the market price of 2,861,054,962 (based on the sale area and sale price determined in the management disposal plan of this case; hereinafter the same shall apply), (B) the appraisal corporation was assessed as 2,856,042,962, and (3) the amount to be refunded to 2040,280,416,204,280,416,284,206,294,25,204,26,20 of the above appraised value of the instant property (hereinafter referred to the appraisal price).

However, the amount of the instant right is calculated by applying the proportional ratio, and the amount of the refund included in the appellate court’s appraisal value is part of the amount of the instant right. Thus, the amount of the refund is also calculated by applying the proportional ratio. Therefore, the amount of the refund for the same reason as the above (1) cannot be deemed as the market price of the same inherited property calculated in an objective and reasonable manner.

(3) Article 51(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “The value of the right to acquire real estate shall be based on the aggregate of the amount paid by the evaluation date and the amount equivalent to the presses as of the evaluation date.”

In full view of the overall purport of the oral argument in the statement No. 4, the deceased may recognize the fact that he/she acquired 00 inherited property as a member of the non-party association. In the case of a member, such as the deceased, there is no "amount paid until the evaluation standard date stipulated in Article 51(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act." Thus, the market price of the 00 inherited property may not be calculated by applying the above provision (see Supreme Court Decision 2012Du18615, Jun. 12, 2014).

C) Whether the part concerning 00 inherited property among the instant disposition is lawful

Since the value of the instant right or the appellate court’s appraisal value cannot be deemed as the market price of 00 inherited property, there is no other data to calculate the market price of the 00 inherited property, the part concerning the 00 inherited property among the instant disposition is unlawful. Therefore, the Plaintiffs’ first assertion is with merit.

2) As to the second claim of the plaintiffs (00 Dong real estate portion)

A) Article 60 of the former Inheritance Tax and Gift Tax Act provides that the value of inherited property shall be calculated based on the market price as of the new date of inheritance in principle. Meanwhile, while general rules 61-50.4 of the Inheritance Tax and Gift Tax Act provides that "a road commonly used by many unspecified persons shall be included in inherited property, but the appraised value shall be zero, except in cases where the market price of the commencement of inheritance is confirmed by the compensation price, etc., and where the value of the inherited property is recognized as having property value, such as where the value of the inherited property is actually used by many unspecified persons at the time of commencement of inheritance, regardless of the land category on public record, the appraised value cannot be deemed as having property value, except in exceptional cases where the value of the inherited property is recognized as having property value, such as verification of the market price at the time of commencement of inheritance by compensation price, etc. (see, e.g., Supreme Court Decision 9Du380, Sep. 38, 199).

B) Comprehensively taking account of the respective descriptions and images of evidence Nos. 12 and 13 as well as the purport of the entire pleadings, it is recognized only that the 00 unit real estate is a block other than the three pages surrounded by a house, etc., and it does not constitute a road in which many and unspecified persons jointly use (see, e.g., Supreme Court Decisions 2003Du4270, Oct. 14, 2014; 2004Du10913, Aug. 25, 2005). Of the instant disposition, the part on the 00 unit real estate is included in the value of inherited property on the premise that it does not fall under a road in fact (00 unit real estate). The second assertion by the plaintiffs to this purport is without merit.

3) Sub-determination (Scope of revocation)

Whether a disposition is legitimate or not is determined depending on whether it exceeds a reasonable tax amount. The parties concerned may submit objective tax bases and materials supporting the tax amount until the closing of arguments in the fact-finding proceedings. When computing the legitimate tax amount to be imposed lawfully based on such materials, only the portion exceeding the reasonable tax amount should be revoked, but in other cases, the entire taxation disposition shall be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995).

As seen earlier, the part on the instant 00 real estate among the instant disposition is lawful, but the part on the instant 00 real estate is unlawful, and there is no other data that can compute the market price of the 00 inherited property. Thus, it is difficult to calculate the reasonable tax amount on the Plaintiffs’ inherited property, which is the subject of the instant disposition, and therefore, the instant disposition should be revoked in principle.

However, since the plaintiffs have filed a claim for partial revocation of the disposition of this case, the part in excess of the amount stated in Paragraph 1 of the disposition of this case should be revoked according to the plaintiffs' claim.

3. Conclusion

Therefore, it is decided as per the disposition that the plaintiffs' claims that have been changed in exchange in the trial are accepted on the grounds of all the claims.