[상속세등부과처분취소][공1991.7.15.(900),1798]
(a) Where it is impossible to exercise a right to indemnity against the principal obligor with respect to a surety obligation of the inheritee, whether the amount of the surety obligation is deducted from the value of the
B. The case holding that since it is a joint and several surety by the decedent but it is substantially impossible to exercise the right to indemnity against the principal obligor, the borrowed amount is the obligation to deduct from the value of the inherited property
A. According to Articles 4(1)3 and 10(2) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 190), a debt of an inheritee to be deducted from the value of inherited property refers to a debt which is deemed certain to be paid at a national expense of the inheritee because it may remain existing or be determined at the time of commencement of the inheritance. Even if it is a joint and several liability or a debt on the property of an inheritee for a third party who is assumed by the inheritee at the time of commencement of the inheritance, even if it is certain that the principal obligor would not be able to receive the debt even if he exercises the right of reimbursement after he performs the obligation such as insolvency at the time of the commencement of the inheritance, if it is certain that the principal obligor would not
(b) The case holding that the above borrowed amount is the obligation to be deducted from the value of inherited property, in case where the predecessor jointly and severally guaranteed the borrowed amount borrowed from a mutual savings and finance company under the name of the predecessor Gap to repay the debts to the borrower Gap, and the heir is in the de facto debtor position who is not entitled to exercise the right to indemnity against the
Articles 4(1)3 and 10(2) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990)
Supreme Court Decision 85Nu760 Decided March 11, 1986 (Gong1986,650) 87Nu20 Decided May 12, 1987 (Gong1987,103) 88Nu4294 Decided June 27, 1989 (Gong1989,1175)
Plaintiff 1 and eight others
Daejeon Head of the District Tax Office
Seoul High Court Decision 89Gu12065 delivered on December 27, 1990
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
As to the ground of appeal by Defendant Litigation Performers
Article 4(1)3 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990) provides that Article 2(1)3 of the same Act provides that, within three years prior to the commencement of the inheritance, an amount to be deducted in determining the taxable value of the inheritance shall be one of the amount to be deducted in determining the taxable value of the inheritance and an amount to be deducted by an ancestor to his heir, and an amount to be deducted within one year prior to the commencement of the inheritance shall be limited to the amount to be recognized by the Government as an amount of the obligation to be deducted, and Article 10(2) of the same Act provides that the amount of the obligation to be deducted shall be limited to the amount to be guaranteed by an ancestor to a person other than his heir. In conclusion, an amount of the inherited property to be deducted from the value of the inherited property shall be deemed to mean an obligation to be paid at the nationality of the ancestor because it is possible for the ancestor to be paid at the time of the commencement of the inheritance.
According to the reasoning of the judgment below, the court below acknowledged the fact that Nonparty 1, the decedent of the plaintiffs who died on May 6, 1986, borrowed 55 million won in total from Nonparty 2 until July 10, 1983, and the maturity of 55 million won from Nonparty 3 on February 1, 1985, with the maturity of 1986 designated on January 31, 1986. On the former, Article 7-2 (1) of the former Inheritance Act is not applicable since the former occurred one year before the commencement date of the inheritance, and the latter is jointly and severally guaranteed by the deceased as to the amount of 5 million won borrowed from both mutual savings and finance companies in the name of Nonparty 3 to repay the debts of the non-party 3. The court below recognized that even if the deceased repaid his debts, it is the actual debtor who cannot exercise the right to indemnity against the non-party 3, and determined that the amount of the above loan should be deducted from the inherited property of this case.
The judgment of the court below is just and it cannot be said that there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles, such as the theory of lawsuit.
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 on the bench.
Justices Park Jong-dong (Presiding Justice)