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조세심판원 조세심판 | 2019-01-17 | 조심2018중4624 | 양도

【Request Number】

Appellate Court 2018J 4624 ( October 18, 2019)

[세 목]

Transfer

[Types of Decision]

Dismissal

[Summary of Decision]

Since the key land was transferred after the enforcement date of Article 95 (2) of the Income Tax Act, and the fact that the decedent has lost the key land during the key period is not proven as objective evidentiary data, it is difficult to accept the claim claim claim in light of the following: the key land is used as a site for private teaching institutes, etc. in compliance with the purpose of use during a part of the period; and the key land is used as a site for private teaching institutes, etc. for the key period during which the land was farmland, which is irrelevant to the use

[Related Acts]

Article 95 of the Income Tax Act

[주 문]

During the period from March 26, 2018 to April 9, 2018, the head of the OOO office shall dismiss the claimant's claim seeking the cancellation of the relevant transfer income tax, and the remainder of the claim shall be dismissed.

[이 유]

1. Summary of disposition;

A. High OO (the spouse of OO, the rest of the petitioners, and the death on December 8, 2013) transferred 6/7 of the shares of OO land acquired on July 19, 1974, other than 2,857 square meters, on January 3, 2013, and made a preliminary return of capital gains tax on March 31, 2013 by applying the special long-term holding deduction OO for the land at issue to the land for business.

(b)As a result of a comprehensive audit on the disposition authority, the Director General of the OO shall consider the key land as being used for non-business purposes in excess of the standard period (2 years immediately before the date of transfer, 13 years in three years in one year, 20/100 in one possession period) to be used for non-business purposes, and notify the disposition authority to exclude special long-term holding deduction for non-business purposes, on the ground that it did not own the land at the time of acquisition for 19 years and 10 months (hereinafter referred to as "period of dispute") from the acquisition date (5 July 19, 1974) to May 8, 1994 (hereinafter referred to as "period of dispute"), during the period from the acquisition date (19 May 19, 197) to the date of acquisition to the site of a private teaching institute, etc., the disposition authority shall assume that the amount equivalent to the capital gains tax on the land to be imposed on the representative of O for non-business purposes to the extent of 1000O's's' inherited property value.

C. As a result of the OO’s objection filed on December 28, 2017, among the petitioners, the Commissioner of the National Tax Service rendered a decision on March 8, 2018 (2018.A. 2018.) that the OOOO’s notification of payment to the petitioners should be re-written (2018. A. Before the period of March 26, 2018 through April 9, 2018, the OOO’s office attached the above documents to the petitioners, as stated in attached Form 1 attached hereto.

D. The OO, among the petitioners, appealed again and filed an appeal on October 16, 2018 with the rest of the petitioners on June 20, 2018.

2. Opinion of the claimant and the disposition agency;

A. The claimant's assertion

(i)The disputing land is a land for business regardless of whether it is a farmland in the key period;

The provisions of Article 104 of the Income Tax Act and Article 104-3 of the same Act, which set forth the scope of heavy taxation on non-business land, were newly established in 2005 and enforced in 2007. The key land was farmland (former, April 26, 1994) but the land category at the time of acquisition was used as a private teaching institute site during the period from May 8, 1994 to January 24, 2008, and the disposition agency changed the purpose of use from farmland (water) to miscellaneous land from October 23, 1996 as the farmland at the time of the enforcement of the above provisions to determine whether the land is cultivated as farmland and determined the issue of "miscellaneous land" to exclude the special deduction for long-term possession as farmland and paid a payment notice to the applicant and to the OO for the transfer income tax to be imposed.

In addition, even if Article 104-3 of the Income Tax Act applies to the land at issue, the farmland owned by the person who has obtained permission for, or has reported on, the diversion of farmland under the proviso to paragraph (1) 1 (a) of the same Article and Article 168-8 (3) 4 of the Enforcement Decree of the same Act, or the land used for the relevant exclusive purpose as farmland after completing the farmland diversion consultation under Article 6 (2) 7 of the Farmland Act, shall not be deemed the non-business land even if it is not cultivated by the person himself/herself. In addition, even though Article 104-3 of the Income Tax Act applies to the land at issue, even though the OO used the land at issue as farmland for its original purpose by converting it into the private teaching institute land on May 8,

(2) Since the OO (OO) among the petitioners succeeded to most of the inherited property, a payment notice following the succession to the transfer income tax on the land at issue should be made in accordance with the actual inheritance ratio.

Even if there are two or more heirs under Article 24 of the Framework Act on National Taxes, each heir shall be jointly and severally liable to pay national taxes, etc. calculated by dividing national taxes, etc. imposed or to be paid to the decedent by statutory inheritance within the scope of the inherited property. Since national taxes to be succeeded to and jointly paid by the heir should be the same as those of the heir, it is reasonable that the succession of liability to pay taxes should be equivalent to the percentage of the property actually inherited by each heir. Accordingly, the taxable value of inherited property of the OOO less the amount of debts (the total inheritance by the OO, the total inheritance) out of the amount of debts (the total inheritance by the OO), is equivalent to the value of the OO's taxable value of the inherited property less the amount of debts (the total inheritance by the OOO) out of the OOO's total inheritance amount (the total inheritance amount equivalent to the OO's total inheritance amount) that is equivalent to the OO's total inheritance amount, and the OO's remaining inheritance tax amount is equivalent to the O's inheritance.

(b) Opinions of disposition agencies;

(i)The disputing land is a non-business land which has not been self-employed during the key period of the farmland issues;

Since Article 95 (2) and the main sentence of Article 104-3 (1) 1 (a) of the Income Tax Act, Article 168-6 subparagraph 1 and Article 168-8 (2) of the Enforcement Decree of the same Act, land the possession period of which is not less than five years, "two years from the five years immediately preceding the date of transfer", "one year from the three preceding years", and "period equivalent to 20/100 from the ownership period of the land", land which is not cultivated by itself during the whole period exceeding "the period corresponding to 20/100 from the transfer date" shall be excluded from the special long-term holding deduction that is deducted from the total amount of capital gains tax because it constitutes land for non-business, and if it is merely an indirect operation of agriculture in concentrate on other occupation, it shall not be deemed as a self-employed farmer (Supreme Court Decision 98Du9271, Sep. 22, 198). 200 for the first time, the issue period of the O's first time to be excluded from the first time period.

(2) The petitioners are responsible for joint and several tax liability to the extent of the actual inherited property by succeeding the transfer income tax on the land at issue as much as each statutory inheritance portion.

Where an ancestor does not designate a share of inherited property of the co-inheritors or there is no agreement on, division of, or renunciation of inheritance between the inheritors, each heir's inherited property is divided as much as statutory shares of inherited property under Article 1009 of the Civil Act. Article 24-02 of the General Rules of the Framework Act on National Taxes provides that national taxes, etc. imposed or to be paid by an ancestor at the time of commencement of inheritance shall naturally be succeeded to under the same Act without any separate procedure for liability for tax payment of the heir and the disposal or procedure thereof shall also be effective for the heir. Since donated property is excluded from the inherited property acquired by inheritance, the disposal authorities are excluded from the calculation of shares of each heir's inherited property (National Tax Service No. 46101-160, Feb. 17, 2001). Since the disposal authorities did not make such a notification before the claimant makes a legal division of inherited property, they did not notify the claimant of transfer income tax on the inheritance of the deceased to the extent of statutory shares of inheritance by each claimant, and thus, given that the statutory share of inheritance betweenO or other heirs's equivalent to the heir.

3. Hearing and determination

A. Key issue

(1) Whether special deduction for long-term holding should be excluded by deeming the land at issue as land for non-business use.

(Preliminary Claim) If the claimant succeeded to the liability to pay capital gains tax to the predecessor for each statutory inheritance, the propriety of the disposition in which the claimant has notified the claimant to pay such income tax.

(b) Relevant Acts and subordinate statutes: Reference 2.

C. Facts and determination

(1) Examining the examination data of each inheritor’s tax amount to be paid and the list of persons jointly and severally liable for tax payment submitted by the disposition agency. On September 19, 2017, the first preliminary return of capital gains tax was made by applying the special long-term holding deduction to the owner of the land at issue by deeming the land at issue as the land for business on March 31, 2013, but the first preliminary return of capital gains tax was made by applying the special long-term holding deduction to the owner of the land at issue. However, the disposition agency notified the owner to exclude the special long-term holding deduction on the ground that the land at issue falls under the non-business land. Accordingly, the disposition agency succeeded the transfer income tax of the land at issue to the owner and the owner of the OO as the amount equivalent to each statutory inheritance under Article 1009 of the Civil Act and succeeded to the tax payment within the limit of the property value inherited from OOOO to the owner’s joint and several liability for tax payment by attaching the notification to OO for tax payment to the owner on September 19, 2018, 2017.

(2) As indicated below, the period of holding at issue (i.e., July 19, 1974 through Jan. 4, 2003.1.4, May 8, 1994.) other than the key period (i.e., the period from July 19, 1974 to May 8, 1994.) and the key land during the period from May 9, 2004 to January 23, 2008, there is no dispute between the claimant and the disposition authority as to the non-business facts for the period of Jan. 4, 2013.

【Pap 1. Use for each period during the holding period of the key land

(3) The facts verified by the disposition agency are as follows.

(a)OOO Commissioner of the National Tax Service had an address in OO where the controversial land was located during the period of March 11, 1980 and November 3, 1984 during the period of possession, and had an address in OOO. In the trade name, "OO corporation" was engaged in a manufacturing business that sold an annual average amount of OO won during the period of 1992 and 1998, and it is difficult to view it as a full-time farmer because the claimant received the salary equivalent to annual average OO won during the period of 1992 and 198. The claimant presented a certificate of association members of OO and letter of credit guarantee, but it did not submit objective evidence proving the actual cultivation, and OO used the land for the period of 10/100 of the total period of possession (35 months) and the total period of 10/100 of the land before the date of acquisition (10/100 of the land during the period of 16/60 of acquisition).

【BO's project and salary details for PO 2.

(B) On October 5, 2015, when the claimant filed a return after the deadline for return of inheritance tax on an OOO on October 5, 2015, in light of the details of the decision, such as the tax base, etc. of the inheritance tax filed by the agency, the value of the inherited property actually received by the OOO as stated below, such as the OOO of the total value of inherited property (excluding the amount of debts from the OO of the value of the inherited property less the amount of debts from the OO of the total value of the inherited property) and the amount of the above amount related to the relevant real estate, the OOO and the OOO shall be deemed as belonging to the claimant according to each statutory inheritance ratio.

3. A statement of asset assessment, etc. as to the inherited property of OO

(4) Article 95(1) of the Income Tax Act (amended by Act No. 7837, Dec. 31, 2005) provides that the special deduction for long-term possession of land for non-business use shall be excluded, and the proviso to Article 1 of the Addenda of the Income Tax Act provides for one-year transitional provision to be enforced from January 1, 2007.

(5) On December 20, 2018, the claimant and the agency have attended the Council of Tax Judges held and stated the same purport as the reasons for the claim and the response thereto. The claimant, as stated below, agreed on the claim equivalent to the amount of OO won, other than eight real estate equivalent to the OO won agreed that the OOO independently succeeds among the inherited property of OOOO, but the agency failed to submit evidentiary documents at the time of the investigation of inheritance by the agency, it is inherited the claim according to the statutory inheritance ratio under Article 109 of the Civil Act, as well as the vehicle of OO members, estimated inherited property equivalent to the amount of OOO won, and the liabilities equivalent to the amount of OO won, and thus, it should be viewed that the OOO inherited property was inherited by 71.836%, the rest of OO acquired the inherited property as 7.041%0,000,0000 among the inherited property in question, and it should be viewed that the disposition agency should have reported the ownership of the above real property.

Pursuant to the agreement between the petitioners, the disposition agency should be deemed to have independently inherited obligations equivalent to the amount of the OO's won related to the relevant real estate, as well as the amount of the real estate that the OOO decided to be solely inherited by the OO. As such, the notice of allocation is uniformly limited to the amount of statutory inheritance pursuant to Article 1009 of the Civil Act, without confirming the details of the inherited property among the petitioners, and even if it is illegal, the shares of OO's inheritance shall be 22.40% and the remaining petitioners' shares of inheritance shall be 19.40%. Before this dispute is raised, this case goes against the principle of prohibition of disadvantageous alteration, and in the case of the remaining petitioners, it shall be deemed illegal since it was raised 90 days after this case's notice of allocation.

(6) Taking into account the facts above and the relevant laws and regulations;

(A) First, the appeal filed by the remaining petitioners exceptOO was filed after the lapse of 90 days (204 days) from September 19, 2017 (204 days) from the date of the payment notice (204 days) (the disposition office imposed the OO on the transfer income tax corresponding to the transfer income tax for the year 2013) on the OO, along with the “list of co-inheritors liable for tax payment by inheritor” attached thereto.

(B) Next, the claimant's primary argument about the request for adjudication filed by OO is that Article 104-3 of the Income Tax Act, which provides for the transfer income tax on the land for non-business use, was newly established in 2005 and enforced in 2007. The disposition agency shall regard the land which is not farmland as farmland again and shall be excluded from the special deduction for long-term possession because it is the land for non-business use for non-business use for non-business use for non-business use, and it is argued that there is a liability to pay transfer income tax on OO as the special deduction for non-business use for non-business use for 20 years after the enforcement date of the Act. However, the current income tax law does not provide for the special deduction for non-business use for non-business use for 10 years after the enforcement date of the Act, which is 10 years before the enforcement date of the Act.

In addition, the claimant asserts that the farmland or the land used for the relevant exclusive purpose as farmland for which a person who has obtained permission to divert farmland or filed a report on diversion of farmland has completed the farmland diversion consultation, and the land used for the relevant exclusive purpose cannot be deemed as the land for the relevant exclusive purpose, but the key land is the land changed from the farmland to the miscellaneous land on October 23, 1996, which was after the key period (the date of July 19, 1974 through May 8, 1994), and was used as the site for a private teaching institute during the period from May 8, 1994 to January 24, 198, and the land category was irrelevant to the "use for the diversion of farmland" in the case of the farmland issue period.

(C) Finally, the claimant's preliminary assertion of the claim for adjudication filed by the OOO is considered to be 71.836% of his/her shares in inheritance, and the disposition authority's notice of payment is illegal. However, Article 55 of the Framework Act on National Taxes provides that a person whose rights or interests are infringed due to an illegal or wrongful disposition or a failure to receive necessary disposition as a disposition under the same Act or tax-related Acts may seek cancellation or modification of the disposition or request necessary disposition. Article 79 of the same Act provides that the Council of Tax Judges shall not make a decision more unfavorable to the claimant than that of the request for adjudication. The request for adjudication in this case is deemed to be unlawful since the claimant notifies the amount of tax succeeded to him/her by notifying the amount of tax higher than that of the tax succeeded to him/her according to the notice of payment, thereby seeking a decision more unfavorable than the initial disposition and thus, it is deemed to be unlawful as it violates the above provision.

4. Conclusion

This case shall be decided in accordance with Article 81 and Article 65 (1) 1 and 2 of the Framework Act on National Taxes as the petition for adjudication is groundless or inappropriate as a result of the review.

§ 1. Notice of this case

[Attachment 2] Acts and subordinate statutes

(1) Income Tax Act;

(A) Before the partial amendment by Law No. 12169 of January 1, 2014

Article 95 [Transfer Income Amount] (1) The amount of capital gains shall be the amount calculated by deducting the special deduction for long-term holding from the amount (hereinafter referred to as "transfer marginal profits") obtained by deducting necessary expenses pursuant to Article 97 from the total amount of capital gains pursuant to Article 94 (hereinafter referred to as "transfer value").

(2) "Amount of special deduction for long-term holding" in paragraph (1) means the amount calculated by multiplying gains on transfer (where an association member's relocation right is transferred, limited to gains on transfer of house before approval for a management and disposition plan under Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) of the assets under Article 94 (1) 1 (excluding assets transferred without registration under Article 104 (3) and land for non-business under Article 104-3), the holding period of which is at least three years, and the assets under Article 94 (1) 2 (a) by the deduction rate by holding period under the following table 1:

Article 104-3 (Scope of Land for Non-business Use) (1) "Land for non-business use" in Articles 96 (2) 8 and 104 (1) 8 means any of the following land for the period prescribed by Presidential Decree during which the relevant land is owned:

1. A paddy field, dry field, or orchard (hereafter referred to as "farmland" in this Article), which falls under any of the following items:

(a) Farmland, the owner of which does not reside at the seat of farmland, or farmland which is not cultivated by himself/herself, as prescribed by Presidential Decree: Provided, That this shall not apply to farmland that may be owned by himself/herself pursuant to the Farmland Act and

(2) In applying paragraph (1), where the land falls under any subparagraph of paragraph (1) due to the prohibition of use of the land under Acts after the acquisition or other inevitable reasons prescribed by Presidential Decree, such land may not be deemed the land for non-business use, as prescribed by Presidential Decree.

(3) In applying paragraphs (1) and (2), necessary matters concerning the scope, etc. of farmland, forest and stock farm sites shall be prescribed by Presidential Decree.

(B) was partially amended by Act No. 7837 of Dec. 31, 2005

(2) For the purpose of Article 95 (Transfer Income Amount), the term "special long-term holding deduction amount" means the amount calculated according to the classification falling under each of the following subparagraphs in respect of the assets under Article 94 (1) 1 (excluding the assets to which the tax rates under Article 104 (1) 2-3 through 2-8 apply, and the unregistered transferred assets under paragraph (3) of the same Article), the holding period of which is not less than three years:

(1) The amount of the transfer income tax of a resident shall be the amount calculated by applying the tax rates in each of the following subparagraphs to the tax base of transfer income of the current year (hereinafter referred to as the "calculated tax amount of transfer income"). In this case, when one asset falls under two or more of the tax rates under the following subparagraphs, the highest one of them shall apply:

2-7. Land for non-business use under the provisions of Article 104-3:

60/100 of the tax base of transfer income;

Article 104-3 (Scope of Land for Non-business Use) (1) The term "land for non-business use" in Articles 96 (2) 8 and 104 (1) 2-7 means the land falling under any of the following subparagraphs (hereafter referred to as "land for non-business use" in this Article) for the period prescribed by Presidential Decree from among the period of owning the relevant land:

1. The dry field, the paddy field and the orchard (hereafter referred to as "farmland" in this Article), which fall under any of the following items:

(a) Farmland, the owner of which does not reside in the seat of farmland, or which is not cultivated by himself under the conditions as prescribed by the Presidential Decree: Provided, That the farmland which may be owned by him under the Farmland Act and other Acts, and which may be

(2) In applying the provisions of paragraph (1), in case where land falls under the non-business land due to the prohibition of use due to the provisions of Acts after its acquisition or other inevitable reasons prescribed by the Presidential Decree, it may not be regarded as the non-business land

Addenda (Law No. 7837, December 31, 2005)

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2006: Provided, That the amended provisions of Article 156-4 shall enter into force on July 1, 2006, and the amended provisions of Article 95 (2) (limited to the part concerning Article 104 (1) 2-5 through 2-8 in the main sentence other than each subparagraph), Article 101 (2), and Article 104 (1) (excluding subparagraph 2-4) shall enter into force on January 1, 2007.

Article 3 [General Application of Transfer Income Tax] The amended provisions of this Act concerning transfer income tax shall apply from the portion transferred after the enforcement of this Act.

(2) Enforcement Decree of the Income Tax Act

(A) Prior to the partial amendment by Presidential Decree No. 26067, Feb. 3, 2015

"Period prescribed by Presidential Decree" in Article 168-6 of the Act other than each subparagraph means the period falling under any of the following subparagraphs:

1. Where the possession period of land is not less than five years, the period falling under all of the following items:

(a) Period exceeding two years from among five years immediately before the transfer date;

(b) Period exceeding one year from among 3 years immediately before the transfer date; and

(c) Period exceeding the period corresponding to 20/100 of land possession period. In such cases, the calculation of period shall be made by the number of days;

(1) The term "farmland" in Article 104-3 (1) 1 of the Act means the paddy field, paddy field, and orchard, which are the land actually used for cultivation regardless of the land category in the public cadastral book.

(2) The term "farmland the owner of which does not reside in the location of farmland or does not cultivate by himself/herself" in the main sentence of Article 104-3 (1) 1 (a) of the Act means farmland excluding farmland the farmland, the owner of which is registered as a resident in a Si (including an administrative city established pursuant to Article 15 (2) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City; hereafter the same shall apply in this Article), Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this Article) which is the same as the location of farmland, and a person who actually resides in an area within 20 kilometers in a straight line from a Si/Gun/Gu or farmland adjacent thereto (hereinafter referred to as "rural village") as defined in subparagraph

(3) The term "farmland that can be owned under the Farmland Act or other Acts and subordinate statutes" in the proviso to Article 104-3 (1) 1 (a) of the Act means any of the following farmland:

4. Farmland owned by a person who has obtained permission for, or has filed a report on, the diversion of farmland under Article 6 (2) 7 of the Farmland Act, or farmland for which the consultation on the diversion of farmland has been completed under Article 6 (2) 8 of the same Act, and

(3) Any land falling under any of the following subparagraphs pursuant to Article 104-3 (2) of the Act shall not be deemed land for non-business use.

1. Farmland, forest land and stock farm land inherited before December 31, 2006, which are transferred not later than December 31, 2009;

1-2. Farmland, forest land and site for stock farm which a lineal ascendant or spouse has cultivated directly for not less than eight years while living in the location of land prescribed by Ordinance of the Ministry of Strategy and Finance, and which are inherited or donated by the relevant lineal ascendant or the relevant spouse;

2. Farmland, forest land and stock farm land owned for not less than 20 years before December 31, 2006, which are the land transferred not later than December 31, 2009;

(B) What was partially amended by Presidential Decree No. 19254 on December 31, 2005

(3) The land falling under any of the following subparagraphs pursuant to the provisions of Article 104-3 (2) of the Act shall not be deemed the land for non-business use:

1. Farmland, forest land and stock farm land inherited before December 31, 2006, which are transferred not later than December 31, 2009;

2.Land, forest land and stock farm land owned for not less than 20 years before December 31, 2006, which are transferred not later than December 31, 2009;

(3) Farmland Act

Article 2 [Definitions] The definitions of terms used in this Act shall be as follows:

5. The term "self-Cultivating" means that a farmer is constantly engaged in the cultivation of crops or the culture of perennial plants in his/her own farmland, or cultivates or cultivates not less than 1/2 of the farming with his/her own labor, or an agricultural corporate body cultivates crops or cultivates perennial plants in its own farmland;

(4) Framework Act on National Taxes

Article 55 [Appeal] (Appeal) (1) Any person whose rights or interests are infringed upon by an illegal or unreasonable disposition under this Act or other tax-related Acts, or by failing to receive a necessary disposition, may request the cancellation or modification of such disposition, or request a necessary disposition, pursuant to the provisions of this Chapter.

Article 68 (Period of Request) (1) Any request for adjudgment shall be filed within 90 days from the date (when a notice of disposition is received, the date of its receipt) on which the relevant disposition is known.

Article 79 [Prohibition of Unfair Accusation or Change of Disadvantages] (2) In making a decision under Article 65 applicable mutatis mutandis under Article 81, the Council of Tax Judges or the Joint Session of Tax Judges shall not make a decision more disadvantageous to the requester than the disposition for request for adjudgment

(5) Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014)

Article 24 (Succession to Tax Liability due to Inheritance) (1) When an inheritance commences, the heir (including a testamentary donee; hereinafter the same shall apply) or administrator of inherited property provided for in Article 1053 of the Civil Act shall be liable to pay national taxes, additional dues and expenses for disposition on default imposed on or to be paid by the ancestor within the limit of the property inherited.

(2) If at least two heirs exist in cases falling under paragraph (1), each heir shall be jointly and severally liable to pay national taxes, additional dues, and expenses for disposition on default, calculated by dividing national taxes, additional dues, and expenses for disposition on default, imposed on or to be paid by such decedents according to the shares of inheritance under Articles 1009, 1010, 1012, and 1013 of the Civil Act, within the limit of property received by inheritance.

(5) Any disposition or procedure taken against an ancestor shall also be effective for a heir or administrator of inherited property who succeeds to a duty to pay tax due to inheritance pursuant to paragraph (1).

(6) Civil Act

§ 1009. (1) When there are several successors in the same order, their shares in succession shall be equally divided.

(2) The inheritance portion of the spouse of an inheritee shall be 50 percent of the inheritance portion for lineal descendants where it is inherited jointly with lineal descendants, and 50 percent of the inheritance portion for lineal ascendants where it is inherited jointly with lineal ascendants.

Article 1012 (Designation of Method of Division or Prohibition of Division by Will) An inheritee may by will determine the method of division of the inherited property, entrust a third person with such determination, or entrust a third person with such determination, or prohibit division for a period not exceeding five years from the time of the commencement of the inheritance.

Article 1013 [Division by Agreement] (1) Except as provided for in the preceding Article, co-inheritors may divide their inherited property at any time by agreement.