｢상속세 및 증여세법｣상 소급감정가액에 의한 시가 적용을 둘러싼 쟁점과 해석론

Recent controversies related to the National Tax Service's non-residential property appraisal project arose from a loophole in the current inheritance and gift tax law, stemming from the practical difficulty of determining the objective market price for certain properties and the unchangeable constraint of realizing the official land price. The widespread tax evasion that exploited this loophole prompted the tax authorities to change their tax practices to achieve fair taxation based on the principle of ability to pay, which led to several issues. The taxation of retroactive appraisal by the tax authorities is difficult to deny as an attempt to find the objective market price of inherited (or gifted) property, in line with the principle of market price and the principle of substantive taxation, as long as the Supreme Court's interpretation of Article 49 (1) of the Enforcement Decree of the Inheritance and Gift Tax Act as an exemplary provision remains unchanged. However, it is difficult to interpret the current legal system as granting the tax authorities the power of retroactive appraisal. Interpreting the Supreme Court's judgment as giving the tax authorities unlimited power to perform retroactive appraisal could hollow out the entire valuation of real estate system under the Inheritance and Gift Tax Act. Therefore, cautious tax practices and prompt legislative supplementation are necessary. Taxpayers in related cases point to the issue of equity among taxpayers who inherited (or gifted) similar taxable items, claiming that legal stability and predictability are being violated. However, from a broader perspective, considering the issue of equity with taxpayers of other taxable items who have the same tax-bearing capacity, the tax authorities' attempts can be justified. Nevertheless, if the tax authorities issue tax dispositions that go beyond the law without legislative amendments and through a “policy project" publicly disclosed via press releases or by amending the enforcement decree, it would be difficult to sustain. Therefore, the administration must first actively pursue legislative improvements to close these loopholes. It is necessary to consider institutional and legislative improvements to allow taxpayers to accept a fair market price within a predictable scope. This could be achieved by further specifying the criteria for properties subject to the tax authorities' appraisal within a reasonable range, considering property size, effectiveness of the appraisal, tax equity, and project budget, or by imposing an appraisal obligation on taxpayers and defining the selection criteria in the law. In conclusion, according to the established position that views the provisions of Article 49 (1) of the Enforcement Decree of the Inheritance and Gift Tax Act as exemplary, the retroactive appraisal for taxation purposes can be considered permissible. However, it is necessary to fully consider the issues raised by opposing prior studies.