「상속세 및 증여세법」상 부동산평가방법의 문제점―공평과세의 원칙을 중심으로

The Constitutional Court of Korea stated that the value of inherited property and donated property shall be calculated based on the market value as of the commencement date of inheritance or the date of donation, and held that Article 60(1) and (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5193, December 30, 1996；before the amendment by Act No. 9916, January 1, 2010), which defines the meaning and scope of market value, neither infringes the right of property nor contravenes the right of equality (see Constitutional Court Decision 2008Hun-Ba140 Decided October 28, 2010). With respect to the assessment of the value of inherited property and donated property, the Constitutional Court also determined that Article 61(7) of the former Inheritance Tax and Gift Tax Act (before the amendment by Act No. 7010, December 30, 2003), which stipulates that between the value assessed based on the lease fee of property to which a de facto lease agreement is executed or a right of lease is registered and the officially assessed individual land price, the larger amount shall be deemed the value of said property, did not infringe a taxpayer’s right of property or right of equality (see Constitutional Court en banc Decision 2005Hun-Ba39 Decided June 29, 2006). However, such decision of the Constitutional Court is based on the review and interpretation of individual provisions－despite the provisions relating to property valuation under the Inheritance Tax and Gift Tax Act being organically and closely related－and merely focuses on the justification of assessment centering on the overall concept of market value, and appears to have disregarded the issue of fairness of assessment in relation to taxpayers with the same tax-bearing capacity. With respect to property valuation, fairness is a value-oriented concept transcending the adequacy of valuation. In actuality, issues regarding the provisions on assessment method under the Inheritance Tax and Gift Tax Act mostly arise from the failure to sustain fairness in taxation among taxpayers with the same tax-bearing capacity, which in turn stems from the relevant statutory provisions. Ensuring and maintaining fairness in the assessment of the subject of taxation is the utmost fundamental requirement to develop a valuation system under the tax law. Moreover, albeit the substance of the method of assessment applied to any taxpayer is deemed appropriate, if it imposes heavier tax burden as opposed to other taxpayers with the same tax-bearing capacity, the generally-accepted legal doctrine in such countries as the U.S., Germany or Japan is that such assessment method is considered as unconstitutional or unlawful barring special circumstances that may rationalize such discrimination. This article mainly explores the issues of our country’s judicial system in comparison with those of other major countries and touches upon the issues of the Constitutional Court’s rationale that served as a basis for the decision of constitutionality as to the aforementioned matter. In detail, the author addresses such various topics as：(ⅰ) the significance of equality in respect to the application of the principle of fair taxation under the Korean tax law and the property valuation system of other countries and its implications；(ⅱ) overview of the valuation provisions under Korea’s Inheritance Tax and Gift Tax Act；(ⅲ) characteristics and issues of property valuation provisions；and (ⅳ) the decision of the Constitutional Court as to the relevant provisions and its issues.