세법상 소급감정가액에 의한 시가(時價) 적용의 타당성에 관한 연구―조세법률주의의 명확성 원칙을 중심으로―

Abstract

To pay inheritance tax and donation tax (including derived capital gains tax or special tax for rural areas in case of conditional donation), the current price of real estate should be estimated in accordance with the principle of market valuation stipulated in the inheritance and donation tax law Article 60 and Enforcement (Presidential) Decree of 49 but as it is difficult to estimate price of real estate during the period when there are no dealings, it may create a lot of disputes. If there is no deals within 6 months after inheritance (3 months after donation), it is the key point whether the price changes occur, but it is not easy to prove it. When it is difficult to check the market price, it is the principle of using supplementary assessment methods of standard market price or land price of public announcement in accordance with the inheritance and donation tax Article 61 but the retroactive appraisal is used frequently due to statutory ambiguity. In this thesis, breach possibility of this retroactive appraisal is studied according to the clearness principle of no taxation without law. Also, in the thesis, the retroactive appraisal means the appraisal of the price of the object of taxation (real estate) based on the specific period of the past time. However, the retroactive appraisal might cause errors because of failing to reflect the past status in terms of estimating the past documents in the point of present status after a lot of time elapsed and it has a problem that it may undermine national confidence as it is not stipulated in the law. Therefore, problems on the retroactive appraisal in this study are discussed in detail in light of tax law. This thesis was studied through the judicial precedent, administrative interpretation, administrative appeals, and the literature on application for retroactive appraisal. Through these studies, when tax authorities try to find ways to take down the market price by retroactive estimation in the process of administrative disputes, it may violate the clearness principle and a conclusion is reached that it should be addressed by legislation. The National Tax Service’s application for retroactive appraisal can be the breach against its decision and it is difficult to estimate accurate retroactive appraisal for them. This thesis can provide theoretical basis which is sought to resolve it by legislation in the way that tax authorities explicitly disclose cases that they accept application of retroactive appraisal.