상속세 및 증여세법 소정의 담보로 제공된 재산평가의 특칙 규정의 적용범위(증여일 당일에 근저당권이 설정된 경우) ― 대법원 2013. 6. 13. 선고 2013두1850 판결을 중심으로 ―

The Inheritance Tax and Gift Tax Act(hereinafter referred to as "ITGTA") provides one that uses a mark-to-market method as a property valuation principle for real estate valuation, and the other one that uses so-called supplementary valuation methods which considers the details of the property in case fair mark value cannot be calculated(ITGTA, article 60, paragraph 2 and 3). As a supplementary valuation method, ITGTA provides special rules for the assessment on the property put up as security when the right to collateral security is established on the property(the paragraph 1 of the article 66 of the ITGTA, the item 3 of the paragraph 1 of the Presidential Decree of the ITGTA)The issue of this case is that whether the special rules for the property put up as security can be applied or not when the right to collateral security is established on the day of giving. With regard that the credit amount in security by the right to collateral security which is established on the day of giving most accurately reflects the market value of the property and the meaning of the provision of the ITGTA(article 66), the Presidential Decree of the ITGTA(article 49, paragraph 1, item2) and the cases which have been provided under the former ITGTA, the special rules mentioned above are considered to be applied when the right to collateral security is established on the day of giving. But as both giving and establishment the right to collateral security are completed on the same day in the case which is discussed in this study, so this study does not review the matter that whether the special rules mentioned above are applied or not in case the right to collateral security is established after the day of giving.