The amount of inheritance tax depends on the results of the assessment of inherited property because the assessment influences the inheritance tax basis. Therefore the assessment should reflect the objective value of the property and one step further,...
The amount of inheritance tax depends on the results of the assessment of inherited property because the assessment influences the inheritance tax basis. Therefore the assessment should reflect the objective value of the property and one step further, the capacity to shoulder the tax burden as close as possible. In the inheritance tax, the value of the inherited property is the standard to compute the tax-bearing capacity, so in principle, the same amount of the inheritance tax should be levied to the same value of inherited property.
The main issue of the assessment system by the Inheritance Tax and Gift Tax Act(hereinafter referred to as "ITGTA") is the inequality between taxpayers using market price and the statutory assessment method, which is caused by the lack of horizontal fairness and unification of assessment methods. Furthermore, the property assessment system in the ITGTA has a problem to severely erode the legal stability and taxpayers' predictability.
This study aims to present the contents, interpretations and the reform measures for the major issues regarding the assessment by the ITGTA, especially focusing into the assessment of real estate.
First, paragraph 1 of the article 49 of the Presidential Decree of the ITGTA which prescribes the scope of the market price should be construed as an enumeration in light of the text, structure, the spirit of the act and the aspect of legal stabilization. Therefore, the appraisal price should be acknowledged as the market price only when it meets the requirements prescribed by the paragraph 1 of the article 49 of the Presidential Decree of the ITGTA. And the retroactive appraisal may also be allowed only when it meets the conditions prescribed in the proviso of the item2 in the Presidential Decree of the ITGTA, article 49, paragraph 1.
Second, the provision to accept the similar actual transaction price(hereinafter referred to as "SATP") to be the market price has a basic flaw not to assess the inherited property properly. And the provision severely violates the predictability of the taxpayers and invites tax inequality and increases tax collection cost due to low rate of compliance by the taxpayers, so it should be abolished.
Third, when a taxpayer submits tax return, it is almost impossible to obtain information on the SATP and to ascertain SATP due to the uncertain standard of the market price. Therefore, Government cannot levy an additional tax according to the paragraph 1 of the article 48 of the Framework Act on National Taxes, because taxpayer has a good cause for the failure to fulfilling liability. This is not only true for an additional tax on failure to file the tax return properly but also for an additional tax on failure to pay the tax properly.
Fourth, the paragraph 6 of the article 50 of the Presidential Decree of the ITGTA prescribes that the individual publicly announced price(hereinafter referred to as "IPAP") should be used for the land in case where it is assessed by statutory assessment method, however, this provision violates the principle of "no taxation without act" because there is no commission provision on this. Therefore in case where there is no IPAP for the property as of the date of commencement of inheritance, the IPAP announced after the date of commencement of inheritance should apply.
Fifth, the property assessment by the ITGTA would be done either by market price or by statutory assessment method. So this may invite tax inequality by taxing taxpayers having the same tax capacities inequally.
Therefore, in regards to the legislation, instead of treating the statutory assessment method different from the market price, it is desirable to make the statutory assessment method as the basic method to compute market price and further make every effort to approach closer to the real price.
Also, it would be necessary to actively study the statutory assessment method so as to enable it to reflect the real market price in a objective and reasonable manner.