소외 망 문ㅇㅇ가 1970.12.28. ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지에 교육법의 규정에 의한 교육기관을 운영하는 학교법인 ㅇㅇ학원을 설립하여 이사장으로 재직하여 오던 중 1992.8.18. 사망하여 동인의 처인 원고 정ㅇㅇ과 자식들인 나머지 원고들이 동인의 재산을 상속하고, 원고 정ㅇㅇ이 1992.11.12. 위 학교법인의 이사장으로 취임한 사실, 원고들이 합의하여 1993.1.15.경 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대 330.6평방미터와 위 지상 건물 합계 489.42평방미터(위 대지와 건물을 이하 이 사건 부동산이라 한다)를 위 학교법인의 수익용 기본재산으로 출연하기로 하여 이 사건 부동산에 관하여 전주지방법원 1993.2.17. 접수 제11658호 및 제11659호로 위 학교법인 명의의 소유권이전등기를 마친 사실, 원고들이 이 사건 부동산을 상속재산에 포함시키지 아니하고 상속재산신고를 하였으나, 피고는 원고들이 이 사건 부동산을 위 학교법인에 출연하였다 하더라도 상속인중의 1인인 원고 정창화가 위 학교법인의 이사장으로서 그 사업운영에 관한 중요사항을 결정할 권한이 있다 하여 구 상속세법(1993.12.31. 법률 제4662호로 개정되기 전의 것, 이하 법이라 한다) 제8조의 2 제6항, 구 상속세법시행령(1993.12.31. 대통령령 제14082호로 개정되기 전의 것, 이하 령이라 한다) 제3조의 2 제13항 제2호에 따라 이 사건 부동산을 상속세과세가액에 산입하여 1994.7.18. 원고들에게 주문기재 부과처분(이하 이 사건 처분이라 한다)을 한 사실은 당사자 사이에 다툼이 없다.

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

In light of Article 8-2(1)1 of the Decree and Article 3-2(1)2 of the Decree, the Plaintiff asserts that the disposition of this case, based on the different opinion, is unlawful in the case of public works operated by educational institutions under the Education Act, as long as its application should be excluded.

B. Provisions of the statute

Article 8-2 (1) 1 of the Act provides that the value of property contributed to a public service project prescribed by Presidential Decree shall not be included in the taxable value of inherited property: Provided, That this shall not apply where all or part of the profits accruing from the public service project belongs to the heir, decedent, or his/her relatives, and Article 3-2 (1) of the Decree provides that the term "public service project" means a public service project not falling under any of the following subparagraphs and a business operating educational institutions under the Education Act" [in cases of a public service corporation subject to the Act on the Establishment and Operation of Public Interest Corporations, and a social welfare corporation or a medical corporation, limited to a corporation in which a person with a special relationship is a director (in cases of a medical corporation, the contributor thereof shall not be considered as a person having a special relationship with the public service project] under subparagraph 2, and Article 3-2 of the Decree provides that the heir shall not be entitled to appoint directors or to make a decision on the inheritance tax amount of property contributed to him/her pursuant to the provisions of Article 8-1 (2) of the Act];

C. Determination

(1) To contribute the real estate of this case inherited according to the agreement on February 17, 1993, which was 6 months after the commencement of the inheritance by the plaintiffs, to the above school juristic person, which is a public service operating educational institution under the Education Act, as seen above, the contribution of the real estate of this case satisfies the requirements of Article 3-2 (13) 1 of the Decree, and the application of Article 3-2 (13) 2 of the Decree should be excluded for the following reasons in the case of public service operating educational institution under the Education Act.

(A) The purport of Article 8-2(1)1 of the Act and Article 3-2(1) of the Decree is that the property contributed to the public service is deducted from the taxable amount of inheritance taxes, but all or part of the profits accruing from the property is attributed to the heir, the decedent or his relatives, and from this point of view, the person who is specially related to the public service in question shall not be a director, or a director shall be appointed or has the authority to decide on the appointment or other important matters pertaining to the business operation. However, the above limitation requirement is different depending on the nature and contents of the public service and related laws and regulations, which provides that the supervisory authority shall thoroughly supervise the operation, financial status, budget execution, etc. of the corporation operating the public service.

In other words, in the case of public interest corporations subject to the Act on the Establishment and Operation of Public Interest Corporations, social welfare corporations, and medical corporations, limited to those operated by corporations exceeding 1/3 of the current number of directors, but in the case of medical corporations, medical corporations, the contributors of medical corporations are not deemed to have a special relationship, but limited to those with a special relationship with the pertinent public interest business with the authority to decide the appointment of directors and other important matters concerning the operation of business, but the only contributors of the contributions are excluded from the authority to decide the appointment of directors and other important matters concerning the operation of business, and in the case of contribution to public service operated by educational institutions under the Education Act, all of the contribution's inherited property should not be included in the taxable amount of inheritance taxes without any restriction requirement.

The special treatment as mentioned above is that the education law requires the Minister of Education, which is a supervisory authority, to thoroughly guide and supervise the public service businesses operating the educational institutions under the provisions of the Education Act. The reason is that even if a person with a special relationship with the public service becomes a director, or has the authority to appoint directors or to decide other important matters concerning the business operation, all or part of profits accruing from the property contributed to the public service is not attributable to the heir, the decedent or his relative, and the public service businesses operating the educational institutions under the Education Act, even in light of the nature and contents of the public service, it is sufficient reason to reduce or exempt the inheritance tax on the property contributed.

(B) However, unlike Article 3-2(1) of the Decree, Article 3-2(2)2 of the Decree provides that the inheritance tax shall not be included in the taxable amount only where an ancestor has contributed to a public project before the establishment of Article 8-2(6) of the Act, if an heir has contributed to a public project, there is unreasonable result by not being included in the taxable amount of inheritance tax, and the heir is likely to block a path to contribute to a public project. In addition, the foregoing provision is newly established on the ground that an heir has contributed to a public project and an heir has no reason or need to change the requirements by distinguishing the cases of contribution to a public project from those of an ancestor. However, Article 3-2(1)2 of the Decree provides that the heir shall not be entitled to appoint a director of the public project, or to decide on the appointment of a director or other important matters concerning the operation of the project.

"(C) However, Article 8-2 (6) of the Act provides that the property contributed to a public project under paragraph (1) 1 shall be included in the taxable value of the pertinent real estate because Article 8-2 (6) of the Act provides that the above provision shall not be included in the public project operated by an educational institution under the Education Act without any limit. Thus, in order to prevent any conflict with each of the above provision, the above provision shall be interpreted and applied only to the public project except for the public project operated by an educational institution under the Education Act, and in applying Article 3-2 (13) 2 of the Decree." (2) Therefore, the disposition of this case is unlawful because the above school juristic person did not meet the requirements under Article 3-2 (13) 2 of the Decree, which included the value of the pertinent real estate in the taxable value of inherited property.

3. Conclusion

Therefore, in this case where the material to calculate a legitimate tax amount is insufficient after deducting the value of the real estate of this case from the taxable amount of inheritance tax of this case, the whole claim of this case is to be accepted, and the costs of lawsuit are to be decided as per Disposition with the burden of the losing defendant.