[2] In a case where Eul et al. et al. and Eul et al were entitled to imposition of inheritance tax and additional tax on the grounds that they did not file a return of inheritance tax base within the statutory period for tax counseling without compensation, and Eul et al sought full compensation for damages against Eul, the case holding that the judgment below which concluded that Eul et al. suffered full property damage equivalent to the total amount of additional tax, is erroneous in the misapprehension of legal principles, etc.

[2] The case holding that the judgment below which concluded that Eul suffered property damage equivalent to Eul's total amount of additional tax solely on the ground that Eul is jointly and severally liable for damages incurred to Eul, in case where Eul et al. and Eul et al were subject to the imposition of inheritance tax and additional tax as Eul et al. failed to file a return of inheritance tax base within the statutory period of return due to erroneous tax counseling by Gap, Eul et al., and Eul sought compensation for the total amount of additional tax against Eul, the case holding that Eul et al. suffered property damage equivalent to Eul's total amount of additional tax solely on the ground that Eul's joint and several liability for payment of additional tax is not established

1. As to the Defendant’s ground of appeal

A. Ground of appeal No.1

The court below acknowledged the facts based on the adopted evidence, and found that the defendant, who is a certified tax accountant, has a duty of care to review relevant Acts and subordinate statutes and to carefully verify the documents, etc. submitted by the plaintiff and his/her father and to consult with him/her on the gift tax of the property donated to his/her father and to handle them, etc., and had the plaintiff and his/her family take charge of tax affairs several times, and had the plaintiff and his/her family take care of the tax affairs of the plaintiff and his/her family, and provided counseling only to the plaintiff without properly ascertaining relevant documents brought by the plaintiff, and the defendant himself/herself was in consultation with the plaintiff at the date of the first instance trial without proper knowledge of relevant Acts and subordinate statutes. Thus, the court below determined to the purport that the defendant is not liable to compensate the plaintiff for losses caused by the plaintiff's wrongful return of inheritance tax due to his/her failure to verify the relevant Acts and subordinate statutes or verify accurate documents, and thus, the defendant is not liable to compensate the plaintiff for losses caused by a tort within the statutory tax base of trust.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to duty of care or requirements for establishment of tort when a certified tax accountant provides free counseling.

B. Ground of appeal No. 2

(1) According to the reasoning of the lower judgment and the record, on the grounds that around December 2009, the Seo-gu Daejeon District Tax Office imposed an inheritance tax of KRW 80,534,940 and additional tax of KRW 68,631,876 on the grounds that the Plaintiff and the Nonparty were jointly and severally liable for payment and did not file a return of inheritance tax base within the statutory reporting period.

The lower court determined that the amount of damages incurred by the Plaintiff due to the Defendant’s erroneous tax counseling was equivalent to KRW 68,631,876 of the penalty tax not levied if the Plaintiff had filed a return on the tax base of inheritance tax within the statutory return period, by giving the Defendant an adequate answer.

(2) However, we cannot accept the judgment of the court below on the damages suffered by the plaintiff for the following reasons.

A co-inheritors are liable to pay inheritance tax according to the ratio calculated as prescribed by the Presidential Decree based on the property received or to be received by each person among inherited property (main sentence of Article 3(1)), but such inheritance tax is jointly and severally liable to pay within the limit of the property received or to be received by each person (Article 3(3)). This is to be equally applied to the liability to pay penalty tax in cases where a co-inheritors fails to file a return on the tax base of inheritance tax within the statutory reporting period, other than the inheritance tax, and thus,

The imposition of inheritance tax and additional tax on the plaintiff and the non-party, who are co-inheritors, imposes a joint and several liability exceeding the amount of tax on each inheritor, and the disposition is deemed to have become final and conclusive. Barring special circumstances where the disposition becomes null and void due to significant and apparent defects, or correction has been made due to the occurrence of the grounds for correction under Article 45-2 of the Framework Act on National Taxes, the portion equivalent to the amount of tax on each inheritor, among which the plaintiff and the non-party are obligated to ultimately bear the obligation. In this case, among additional tax 68,631,876 won, the portion of tax on each inheritor, out of the amount of tax on each of the plaintiff's heir, is ultimately liable for damages caused by the defendant's erroneous tax counseling, and such amount of tax on each of the plaintiff's heir, which constitutes property damage. Thus, even if the plaintiff did not actually pay the amount of tax on each inheritor's portion of additional tax 68,631,876 won, it can be deemed that the plaintiff's property damage occurred

However, it is clear that the part of the additional tax amount of KRW 68,631,876, which is the amount of the non-party’s share of the non-party’s heir cannot be considered as the amount of the tax ultimately borne by the plaintiff, as well as the possibility that the non-party’s own share of the tax cannot be ruled out, and in such a case, it cannot be deemed as the damages suffered by the plaintiff using the amount of the additional tax amount of KRW 68,631,876. Therefore, it cannot be readily concluded that the plaintiff’s property damage was practically caused to the non

Rather, according to the facts established by the court below, the non-party is obligated to jointly pay additional tax, and there is a proximate causal relation with the defendant's wrong tax counseling, so it may be reasonable to view that the non-party has a damage claim arising from tort as to the amount equivalent to his/her heir's amount of tax

Therefore, the court below should have determined the amount of damages to be compensated by the defendant by examining the following: (a) the amount of tax to be borne by each heir among additional tax 68,631,876, the amount of tax to be borne by the plaintiff; (b) the amount of additional tax to be paid by the plaintiff by contributing his/her own property; and (c) the legal basis for claiming damages against the defendant.

Nevertheless, without examining the above circumstances, the lower court concluded that the Plaintiff sustained property damage equivalent to the additional tax solely on the ground that the Plaintiff was imposed an additional tax of KRW 68,631,876 without examining the above circumstances. In so doing, the lower court erred by misapprehending the legal doctrine on the assessment of damages caused by tort and the joint liability of co-inheritors for additional tax payment, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of

2. Plaintiff’s ground of appeal

A. In a case involving tort damages, where the victim was negligent in causing or expanding damages, or there is a ground to limit the tortfeasor’s liability, it should be taken into account as a matter of course in determining the scope of the liability for damages. However, determination of fact-finding or its ratio on comparative negligence or limited liability grounds belongs to the exclusive authority of the fact-finding court unless it is deemed that it is clearly unreasonable in light of the principle of equity (see, e.g., Supreme Court Decisions 2002Da43165, Nov. 26, 2002; 2010Da79947, Jan. 12, 2012).

B. Examining the reasoning of the judgment below in light of the above legal principles and records, the fact-finding or the judgment of the court below on the grounds of comparative negligence or limitation of liability cannot be deemed considerably unreasonable in light of the principle of equity, and there is no error of law such as misunderstanding of legal principles on comparative negligence or limitation of liability

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)