금원이 상속개시일 전 10년 이내에 피상속인에 의해 상속인인 원고에게 증여된 것인 이상 사전증여재산에 해당[국승]
Inasmuch as the money was donated by an ancestor to a plaintiff who is an heir within 10 years before the commencement date of the inheritance, the money constitutes donated property.
Even if the sale price of the real estate was agreed to be distributed according to the heir's shares in inheritance, two of the inheritors agreed to inherit each one-half share in the inherited property by way of the execution method, and as long as the registration of ownership transfer based on inheritance by agreement division has been actually made, the two of the successors cannot deny the substance inherited each one-half share in the inheritance.
Article 13 of the Inheritance Tax and Gift Tax Act
2016Guhap53142 Revocation of Disposition of Levying Inheritance Tax
00
Attorney Park Jae-soo, Counsel for the defendant-appellant 000
head of Sung Dong Tax Office
July 13, 2016
September 2, 2016
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The disposition of imposition of KRW 32,306,40 (including additional tax) imposed on the Plaintiff on April 1, 2015 by the Defendant shall be revoked.
1. Details of the disposition;
A. On November 21, 2008, the Plaintiff reported and paid KRW 21,600,000 as gift tax on December 16, 2008 on the donation of KRW 200,000 (hereinafter “the instant money”).
B. Kim 00 died on June 6, 201, and the Plaintiff did not separately report the tax base and tax amount of inheritance tax.
C. On April 1, 2015, the Defendant decided and notified the Plaintiff of KRW 32,306,400 (including additional tax) on the ground that the instant money should be added to the taxable value of inherited property as donated property for the Plaintiff Kim 00 in advance (hereinafter “instant disposition”).
D. The Plaintiff appealed and filed an appeal on September 24, 2015, but the Tax Tribunal dismissed the said appeal on December 28, 2015.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, 3, 5, and 6, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
1) The Plaintiff’s father, KimA, his father, owned a house of 345-4 large 294m2 and above ground (hereinafter “instant real estate”). On November 13, 2001, KimA died. Around November 13, 2001, there were Kim 00, who was the wife of KimA, the Plaintiff, KimB, KimB, KimCC, and KimD.
2) The co-inheritors of KimA, including the Plaintiff, agreed to sell the instant real estate, which is the inherited property of KimA, and divide the proceeds therefrom into inheritance shares. For convenience, Kim00 and KimB decided to take the form of sale after registering inheritance in the name of KimB. The real estate of this case was sold at KRW 1.155 million, and in fact, the real estate of this case was sold at KRW 1.550 million after deducting the inheritance registration cost, transfer income tax, and all kinds of expenses from the above sales price, and was divided by 1.5 billion won by 1/5 shares. It was the money of this case that the Plaintiff received KRW 200 million as the Plaintiff’s share, and the Plaintiff reported and paid gift tax.
3) In light of such circumstances, the instant money is merely the fact that co-inheritors received the instant real estate, which is the inherited property of KimA, according to the inheritance shares. Therefore, it cannot be deemed that the Plaintiff received prior donation from Kim00.
4) Nevertheless, the instant disposition was unlawful in view of the instant money as prior donation property on a different premise.
B. Determination
1) Article 13(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013) provides that the property donated by an ancestor to his/her heir within ten years prior to the commencing date of inheritance shall be added to the taxable value of inherited property. According to the evidence No. 4, it is recognized that the KRW 200,000,000 was deposited into the Plaintiff’s bank account with the Plaintiff’s bank account on November 12, 2008, and the fact that the Plaintiff reported and paid KRW 21,60,000,000 on December 16, 2008 by deeming that he/she donated KRW 20,000 to his/her mother Kim 0, a donation of KRW 1
Therefore, insofar as the instant money was donated to the Plaintiff, an heir, within 10 years before the date of commencing the inheritance due to the death of Kim 00, it constitutes donated property in advance.
2) Even if co-inheritors, including the Plaintiff, agreed to dispose of the instant real estate, which is the Plaintiff’s inherited property, and receive the distribution of the proceeds therefrom in accordance with the inheritance shares, inasmuch as the execution method thereof, Kim00 and KimB agreed to inherit the instant real estate 1/2 shares in the inheritance, and accordingly, the ownership transfer registration based on the “Inheritance by a split-off as of May 29, 2008,” which was made on May 29, 2008, was made in the future of 1/2 shares in the ownership transfer registration, 1/2 shares in the inheritance by a split-off as of May 29, 2008, 1/2 shares in the instant real estate, cannot be denied.
The Plaintiff asserts to the effect that the entry of the “Agreement on Transfer after Inheritance” (No. 3) prepared at the time of the agreement on the division of inherited property as of May 29, 2008, along with the agreement on the division of inherited property as of May 29, 2008, is the genuine will of co-inheritors, so the substance of the instant money should be identified accordingly. However, the said agreement is merely merely a stipulation on how to distribute the proceeds from the sale of the instant real property among co-inheritors, and it is not a evidence of rejection of the agreement on the division of inherited property between Kim0 and KimB that the instant real property should be inherited in 1/2 shares, and the testimony of KimE is also the same.
3) Therefore, the instant disposition is justifiable to impose inheritance tax, including the taxable value of inherited property, by deeming the instant money as a prior donation property.
3. Conclusion
The plaintiff's claim of this case is dismissed as it is without merit, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.