「상속세 및 증여세법」상 부동산 평가의 문제점 및 개선방안

상속·증여세법상 부동산 평가의 문제점과 개선방안을 연구했다.

The current Inheritance and Gift Tax Act adopts, as its fundamental principle, the assessment of the tax base on the basis of "fair market value," which most accurately reflects the value of an asset, in order to realize the principle of substance-over-form taxation and the principle of tax equality. Unlike apartments, for which transactions occur frequently and price information is formed with relative transparency, however, assets with strong individual characteristics—such as land and non-residential real estate—often lack objectively identifiable sales prices from comparable transactions.

To address this structural limitation, the Inheritance and Gift Tax Act recognizes appraised values as fair market value. Since 2020, the National Tax Service has implemented the so-called "appraisal program for small commercial buildings and other properties," under which the tax authority itself commissions appraisals of non-residential real estate and uses the resulting appraised values as the basis for taxation, and it has gradually expanded the scope of the program to residential real estate.

This thesis aims to examine the legal structure of real estate valuation under the Inheritance and Gift Tax Act and the problems arising in its operation, in comparison with the legislation of major foreign jurisdictions, and to propose reasonable improvements from the perspectives of the principle of no taxation without law, the principle of tax equality, and the protection of taxpayers' rights. Five problems are identified in the operation of the current system.

First, the proviso to Article 49(1) of the Enforcement Decree of the Inheritance and Gift Tax Act has been applied as the legal basis for recognizing values determined after the expiration of the original valuation period as fair market value, and the dispute over whether the proviso exceeded the scope of delegation by its parent statute was settled by Supreme Court Decision No. 2025Du35499, rendered on April 2, 2026.

Nevertheless, the criteria for setting the base date for price calculation in retroactive appraisals remain unprescribed by statute and have instead depended on the established rulings of the Ministry of Economy and Finance, which were revised twice within a short period in 2020 and 2021; a structure in which criteria directly determining the tax base are governed by administrative interpretation undermines taxpayers' predictability and legal stability.

Second, the scope, selection criteria, and procedures of the appraisal program of the National Tax Service are prescribed not by statute or enforcement decree but by an internal directive of the National Tax Service, and their application has been expanded in stages, which reveals limitations in light of the principle of statutory reservation and taxpayers' predictability.

Third, the Income Tax Act, while applying mutatis mutandis the fair market value provisions of the Inheritance and Gift Tax Act in the denial of unfair transactions, applies a shortened valuation period and contains no provision for the deduction of appraisal fees, thereby treating the same real estate and expenses of the same nature differently depending solely on the tax item.

Fourth, in the application of sales prices from comparable transactions of similar property, the similarity of apartment units is conclusively established upon the mere satisfaction of numerical requirements, which restricts taxpayers' ability to present rebutting evidence and allows the individual characteristics of a single transaction to be excessively reflected in the assessed value; no concrete criteria exist for non-residential real estate; and the scope of transaction data accessible to taxpayers at the time of filing is structurally limited compared with that available to the tax authority.

Fifth, the Valuation Review Committee operates as a body within the tax authority, which limits its procedural neutrality, and statutory criteria for determining the "special circumstances involving price fluctuations," the standard governing the Committee's deliberation, remain insufficient. Accordingly, this thesis proposes the following improvements. First, the requirements for recognizing retroactive appraised values as fair market value after the expiration of the valuation period, together with the criteria for setting the base date for price calculation, should be expressly prescribed in the Inheritance and Gift Tax Act and its Enforcement Decree.

Second, the scope, selection criteria, and procedures of the appraisal program of the National Tax Service should be elevated into the Inheritance and Gift Tax Act or its Enforcement Decree, and the asymmetry between the parties in the structure of commissioning appraisals and in the allocation of appraisal costs should be rectified. Third, the valuation period applicable to the denial of unfair transactions under the Income Tax Act should be unified with the valuation period for gift tax under the Inheritance and Gift Tax Act, and appraisal fees should be expressly included among the necessary expenses for capital gains.

Fourth, the criteria for determining similarity should be refined, multiple values of similar property within the valuation period should be averaged in application, and a prior inquiry procedure for taxpayers together with an integrated real estate valuation system should be established. Fifth, the neutrality of the Valuation Review Committee should be strengthened, and the criteria for the "special circumstances involving price fluctuations" should be codified in the Enforcement Rule.

It is hoped that the improvements presented in this thesis will contribute to the real estate valuation system under the Inheritance and Gift Tax Act functioning more faithfully in terms of the principle of no taxation without law, the principle of tax equality, and the protection of taxpayers' rights. 현행 상속세 및 증여세법(이하 ‘상증세법’)은 실질과세원칙과 조세평등주의를 구현하기 위하여 자산의 가치를 가장 정확하게 반영할 수 있는 ‘시가’를 기준으로 과세표준을 산정