B. In a case where it is impossible to cancel only the portion exceeding the reasonable tax amount because the reasonable amount of inheritance tax cannot be calculated (affirmative)

C. The meaning of “value at the time of imposing inheritance” under Article 9(2) of the former Inheritance Tax Act (amended by Act No. 4022 of Dec. 26, 1988) (=value at the time of imposing inheritance tax with knowledge of the existence of inherited property)

B. Determination of the legality of a disposition in a lawsuit seeking revocation of taxation is based on whether it exceeds a legitimate amount of tax. The parties can submit arguments and materials supporting the objective amount of tax liability until the closing of argument in the fact-finding court. When a legitimate amount of tax to be imposed lawfully is calculated based on such materials, only the portion exceeding the legitimate amount of tax should be revoked, and even if the whole amount of the inherited property is not revoked, if a legitimate amount of tax assessment cannot be calculated due to the lack of legitimate amount of inheritance tax

(c) “The value at the time of the imposition of inheritance” as stipulated in Article 9(2) of the former Inheritance Tax Act means the value at the time when the tax authority can impose inheritance tax with the knowledge of the existence of inherited property, not it means the value at the time when it arbitrarily selects the inheritance according to the convenience of the imposition of inheritance within the exclusion period of the inheritance tax.

The costs of appeal are assessed against the defendant.

1. According to the reasoning of the judgment below, the court below held that the defendant, a tax authority, has no burden of proof as to the fact that it is difficult to calculate the market price at the time of imposition of the inheritance tax, which is a requirement for the supplementary evaluation method under Article 5 (1) and (2) 1 of the Enforcement Decree of the above Act, on February 16, 1986, against the plaintiffs who did not report the inheritance within the prescribed period under Article 20 of the Inheritance Tax Act, the defendant assessed the value of the real estate in accordance with Article 9 (2) of the Inheritance Tax Act (amended by Act No. 4022 of Dec. 26, 1988) and Article 5 (1) and (2) 1 of the Enforcement Decree of the above Act, and against the imposition of the inheritance tax and defense tax, the court below rejected the standard for imposition of the inheritance tax in this case on the ground that even if the above defendant's assessment method was erroneous, it cannot be found that the standard for imposition of the inheritance tax in this case was unlawful.

2. Examining the record, there is no other evidence to prove that it is difficult to calculate the market price at the time of imposing the inheritance tax, which is the requirement to use the supplementary evaluation method under Articles 5(1) and 5(2)1 of the Enforcement Decree of the Inheritance Tax Act, in the evaluation of the real estate price of this case. However, during the litigation of this case, the defendant requested the Korea Appraisal Board to conduct a retroactive appraisal of the market price at the time of November 1, 198, and submitted the document stating the result as Nos. 8-1 through 3 and 9 as evidence No. 8-2. In light of the contents, among the real estate of this case, the real estate of this case is impossible to assess the market price of the above house and land because it cannot be deemed as the reason for lack of appraisal. Therefore, it is difficult to view that the court below's appraisal cannot be viewed as a legitimate measure to assess the market price of the above house and land by using the Supplementary Evaluation Act.

In addition, the determination of the legality of a disposition in a taxation disposition lawsuit is based on whether it exceeds a legitimate tax amount. The parties can submit arguments and materials in support of the objective tax liability amount until the closing of arguments in the fact-finding court. When calculating the legitimate tax amount to be lawfully imposed based on such materials, only the portion exceeding the legitimate tax amount should be revoked, and the entire tax amount should not be revoked (see Supreme Court Decision 90Nu8060, Apr. 12, 1991). However, in this case, there is no evidence to evaluate the legitimate value of the inherited property as seen earlier, and therefore, the entire tax assessment shall be revoked because the legitimate amount of inheritance tax cannot be calculated.

Furthermore, the value at the time of imposing inheritance tax under Article 9 (2) of the above Inheritance Tax Act shall not mean the value at the time of arbitrary selection according to the convenience of collecting inheritance within the exclusion period of imposing inheritance tax, but it shall be interpreted to mean the value at the time when the tax authority can impose inheritance tax with the knowledge of the existence of inherited property (see, e.g., Supreme Court Decision 91Nu6931, Mar. 13, 1992; Supreme Court Decision 91Nu4348, Nov. 12, 1991; 91Nu4348, Nov. 12, 1991). In light of the records, although the defendant assessed the value of inherited property of director as of Nov. 1, 198, it shall be deemed that the defendant had already known that the real property of this case was inherited property before it was already returned to the plaintiffs on May 21, 198. Thus, unless there is a special reason that the defendant had already assessed the value of inherited property of this case, it shall not be unlawful.

Ultimately, the judgment of the court below that revoked the tax disposition of this case is just and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles which affected the judgment.

Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)