[상속세부과처분취소][공1998.8.1.(63),2020]
In case where a first-class heir, who received a donation of real estate within five years before the commencement of inheritance, renounces inheritance, whether the inheritance tax liability for the donated property is liable (negative)
According to Articles 4(1) and 18(1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993), an amount calculated by adding the value of property donated by an ancestor to an heir or a person other than an heir within a given period prior to the commencement of inheritance to the value of the predecessor’s active property after deducting debts, etc. from the value of the predecessor’s property shall be the taxable amount of inheritance taxes. The inheritance tax is imposed only on the donee of the heir, testamentary donee, or private donation. If a former heir renounces inheritance, the former heir shall not be deemed to fall under “heir” under Article 18(1) of the former Inheritance Tax Act, and accordingly, it shall not be liable to pay inheritance taxes unless that person is the testamentary donee, etc., and even if the value of the decedent received property within five years prior to the commencement of inheritance from the predecessor and received the gift by donation pursuant to the provisions of Article 4(1), the above provision concerning the method of calculating the taxable amount of inheritance taxes cannot be a person’s.
Articles 1 (see current Article 1 of the Inheritance Tax and Gift Tax Act), 2 (1) (see current Article 1 (1) 1 of the Inheritance Tax and Gift Tax Act), 4 (1) (see current Article 13 (1) of the Inheritance Tax and Gift Tax Act), and 18 (1) of the former Inheritance Tax and Gift Tax Act (see current Article 3 (1) of the Inheritance Tax and Gift Tax Act)
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Plaintiff 1 and five others (Attorneys Kim Jae- Jae et al., Counsel for the plaintiff-appellant)
Head of Sungbuk Tax Office
Seoul High Court Decision 96Gu6266 delivered on February 6, 1997
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
1. Article 4(1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) provides that the inheritance tax shall be calculated by deducting public charges, funeral expenses and debts from the value of the property donated by an ancestor to his heir within five years prior to the commencement of the inheritance and the value of the property donated by the ancestor to a person other than his heir within three years prior to the commencement of the inheritance. Meanwhile, Article 18(1) of the former Inheritance Tax Act provides that the heir or testamentary donee (including the testamentary donee of donation becoming effective upon the death of the ancestor) shall be jointly and severally liable to pay the inheritance tax according to the ratio of possession of property each has received or is to be received by the heir or testamentary donee among the donated property added to the inherited property pursuant to Article 4.
According to the above provisions, the amount of inheritance tax calculated by adding the value of the property donated by an ancestor to an heir or a person other than an heir within a certain period prior to the commencement of inheritance shall be the value of the inherited property which remains after deducting an obligation, etc. from the value of the predecessor's active property, and the inheritance tax is imposed only on the donee of inheritance, testamentary donee, or private donation. In this case, where a former heir renounces inheritance, the former heir shall be placed in the same position as he did not have been an heir since the commencement of inheritance (see Supreme Court Decision 95Da27769 delivered on September 26, 1995). Accordingly, the latter does not constitute "he heir" under Article 18 (1) of the former Inheritance Tax Act. Accordingly, there is no liability to pay inheritance tax unless the heir does not fall under a testamentary donee, etc., and even if the value is added by donation from the decedent within a certain period prior to the commencement of inheritance pursuant to the provisions of Article 4 (1).
2. In the same purport, the lower court is justifiable to have determined that there was no inheritance tax liability even if the Plaintiffs were to legally waive their inheritance and received the gift of this case from the inheritee before their birth, and the status of the inheritor who was retroactively lost at the time of commencement of inheritance due to the renunciation of inheritance is not recovered on the ground that the Plaintiffs voluntarily paid inheritance tax after the renunciation of inheritance or re-reported inheritance tax on the inherited property, and the lower court did not err by misapprehending the legal principles as to the status of the inheritor, such as the head of the lawsuit. Furthermore, the allegation that the Plaintiffs agreed with the obligee to reduce the amount of inheritance obligations after the waiver of inheritance, and the administrator of inherited property agreed with the obligee to reduce the amount of inheritance obligations pursuant to Article 1026 subparagraph 3 of the Civil Act cannot be a legitimate ground for appeal, and the above agreement cannot be accepted since it does not constitute a ground for statutory simple approval. All arguments are without merit
In addition, the Supreme Court Decision 93Nu8092 Decided September 28, 1993 cited in the ground of appeal ruled that the scope of "he heir" under Article 4 (1) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990) is limited to the scope of "he heir", so the legal principle is not applicable to this case.
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Im-soo (Presiding Justice)