2. On December 7, 2012, the part exceeding KRW 59,618,100, among the imposition of gift tax (additional tax) imposed by the Defendant against the Plaintiff on the Plaintiff on December 7, 2012, and the part exceeding KRW 144,167,91,840, among the imposition of inheritance tax (additional tax) and the imposition of KRW 161,491,840, shall be revoked, respectively.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of litigation, 4/5 are borne by the Plaintiff, and the Defendant, respectively.

2. 피고가 2012. 12. 7. 원고에 대하여 한 증여세(가산세) 118,348,100원{= 2008. 9. 1. 증여분 증여세에 대한 가산세 30,612,000원 + 2009. 7. 9. 증여분 증여세에 대한 가산세 28,290,000원 + 2009. 12. 28. 증여분 증여세에 대한 가산세 59,446,100원》 및 상속세(가산세) 161,491,840원의 각 부과처분을 취소한다.

A. On March 10, 2010, SongA (hereinafter referred to as "the deceased's spouse") died, and at the time, the deceased's heir had already died, SongCC and SongD (SAE, the father of SongCC and SongD), the deceased's children, and the deceased's grandchildren. On the other hand, at the time of the agreement on the division of inherited property, the plaintiff and the remaining inheritors agreed to bear the plaintiff's inheritance tax, etc.

B. On September 27, 2010, the Plaintiff reported the inheritance tax to the Defendant on September 27, 2010: (i) KRW 3,924,821,106 (i.e., KRW 445,778,40 on land + KRW 3,184,67,060 on building + KRW 114,38,620 on deposit + KRW 179,97,026 on business property + KRW 179,97,026 on deposit; and (ii) calculated the inherited obligation at KRW 2,019,017,748 on deposit; and (iii) reported the taxable value of inherited property at KRW 1,924,821,106 on inheritance (=the inherited property value at KRW 3,924,821,06 on inheritance property - KRW 2,019,017,748 on inheritance obligation); and (iii) KRW 553,724,195,17,175

"Before the death of the deceased, the plaintiff entered into a sales contract with Busan Jin-gu on July 16, 2008 】 Busan Jin-gu 】 00-00 x 228.1 m228 m2 above the above ground (hereinafter referred to as "the first real estate of this case") to purchase KRW 950 million, and paid the price, and completed the registration of ownership transfer with respect to the first real estate of this case on September 2, 2008. (2) On July 3, 2009, the plaintiff entered into the sales contract with the Busan Jin-gu x 00-00 m2 (hereinafter referred to as "the second real estate of this case") to purchase KRW 28,000,000,000,000 and paid the price to the plaintiff as the inheritance tax and the gift tax of this case, and completed the registration of ownership transfer with the plaintiff's account of Busan on July 29, 2009.

(1) Inheritance tax.

◎ 상속재산가액 ： 4,191,531,330원(= 토지 2,780,438,400원 + 건물 939,117,060원 + 예금 18,998,844원 + 사업용 자산 452,977,026원)

◎ 상속채무 : 1,875,108,269원

◎ 사전증여재산가액 : 1,935,000,000원(이 사건 제1, 2 부동산 취득대금 및 원고의 부산은행 계좌로 입금된 5억 원 포함)

◎ 상속세 과세가액 : 4,251,423,062원(= 상속재산가액 4,191,531,330원 + 사전증여 재산가액 1,935,000,000원 - 상속채무 1,875,108,269원)

◎ 상속세(가산세 161,491,840원 포함) ： 1,015,703,377원

(2) Gift tax.

◎ 2008. 9. 1.자 증여분 9억 5,000만 원에 대한 증여세(가산세 30,612,000원 포함)

: 90,612,00 won

◎ 2009. 7. 9.자 증여분 2억 8，W0만 원에 대한 증여세(가산세 28,290,000원 포함)

: 97,290,000 won

◎ 2009. 12. 28.자 증여분 5억 원에 대한 증여세(가산세 59,446,100원 포함)

: 22,446,100 won

"마. 한편, 피고는 이 사건 소송계속 중 2012. 12. 3. 위 상속세 및 증여세의 가산세 부분에 관하여 세액산출과정이 원고에게 제대로 고지되지 않았음을 이유로 이를 직권으로 취소하고，2012. 12. 7. 세액산출과정을 구체적으로 적시하여 아래와 같이 가산세를 새로이 부과하였다(이하 피고가 원고에 대하여 한，2011. 11. 1. 2008. 9. 1.자 증여분 및 2009. 7. 9.자 증여분과 2009. 12. 28.자 증여분에 대한 각 증여세(본세) 부과처분 및 2012. 12. 7. 위 각 증여세에 대한 각 가산세 부과처분을 끼 사건 증여세 부과처분'이라 하고, 피고가 원고에 대하여 한 2011. 11. 1. 상속세(본세) 부과처분 및 2012. 12. 7. 위 상속세(본세)에 대한 가산세 부과처분을 합하여 |이 사건 상속세 부과처분'이라 하며, 이를 모두 통칭할 경우 '이 사건 각 처분1이라 한다).",◎ 2008. 9. 1.자 증여분의 증여세에 대한 가산세 30,612,000원

◎ 2009. 7. 9.자 증여분 증여세에 대한 가산세 28,290,000원

◎ 2009. 12. 28.자 증여분 증여세에 대한 가산세 59,446,100원

◎ 상속세에 대한 가산세 161,491,840원

F. On December 15, 2011, the Plaintiff dissatisfied with each of the instant dispositions, filed a request for tax adjudication with the Director of the Tax Tribunal, and received a decision that the Plaintiff dismissed the request for adjudication from the Director of the Tax Tribunal on April 25, 2012.

Facts without dispute over the basis of recognition, Gap evidence 1-1, 2, Eul evidence 2-1 through 4, Eul evidence 1, Eul evidence 2-1 through 3, Eul evidence 2-8, Eul evidence 13-2 and the purport of whole pleadings.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) As to the imposition of gift tax of this case

A) On September 1, 2008, a portion on which gift tax is imposed on a gift made on September 1, 2008

The Plaintiff did not receive KRW 950,000,000 from the Deceased for the acquisition of the real estate No. 1 of this case.

Even if the Plaintiff received the above KRW 950 million from the Deceased, and at the time, the Plaintiff had a loan claim of KRW 1.2 billion against the Deceased, and thus, the Plaintiff was paid part of the above loan claim of KRW 950 million, not by the Deceased.

Even if all of the loan claims of KRW 1.2 billion cannot be acknowledged, according to the record of evidence No. 11 (written confirmation) written in the name of the deceased, it is clear that the Plaintiff lent KRW 400 million to the deceased.

Therefore, the imposition of gift tax on the donation from September 1, 2008 on the premise that the Plaintiff donated the above KRW 950 million from the Deceased was unlawful within the scope that the entire amount was not illegally or at least 400 million from the value of donated property.

B) The gift tax on the donation made on July 9, 2009 and the portion imposing the gift tax on the donation made on December 28, 2009

There is no objective evidence that the Plaintiff did not receive each of the above money from the Deceased and received the donation.

Even if each of the above amounts was paid from the Deceased, it was paid as repayment for KRW 250 million, excluding KRW 950,000,000,000, which was already repaid with the acquisition fund of real estate No. 1 of this case, among the loan claims against the Deceased of KRW 1.2 billion as seen earlier, and this part must be excluded from the value of donated property subject to taxation at least.

Therefore, the entire imposition of the gift tax on the donation of July 9, 2009 and the donation of December 28, 2009 on the donation of December 28, 2009 is unlawful, or the entire imposition of the gift tax on the donation of December 28, 2009 is illegal to the extent that it does not exclude at least 250 million won, which is the remaining

2) As to the instant disposition of imposing inheritance tax

A) The reason why the heir, including the Plaintiff, etc., completed the agreement on division of inherited property within six months from the end of the period of reporting the tax base of inherited property (six months from the end of the month to which the commencement date of inheritance belongs), was that there was a dispute regarding inherited property, such as the decedent’s death on March 10, 2010, and the heir BB, etc. filed a lawsuit claiming the return of inherited property against the heir, including the Plaintiff, etc. on August 25, 2010.

Article 19(2) and (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereafter the same shall apply in this case) providing that the inheritance may be divided within six months from the day following the filing period of the inheritance tax base return, and that the split-off shall be applied only to the head of the competent tax office, and that the spouse shall be entitled to the inheritance deduction. Article 19(2) and (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereafter the same shall apply to the Inheritance Tax and Gift Tax Act) provides that the inheritance may be divided within a limited period of time, and the above period of time shall be limited to cases where the heir becomes subject to the inheritance claim without any inevitable reason, and Article 19(2) and (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the current Inheritance Tax and Gift Act No.16

B) Of the acquisition funds and deposits of the real estate 1, 2, and 500 million won, 1.2 billion won out of the amount of the instant real estate acquisition and deposit KRW 1.2 billion was repaid to the deceased, and thus, should be excluded from the amount of prior donation property value. However, the amount of the instant inheritance tax assessment disposition calculated by adding it to the amount of the inherited property value is the

1) Article 19(2) of the former Inheritance Tax and Gift Tax Act is identical to that of the instant case under Article 19(2) and (3) of the Inheritance Tax and Gift Tax Act.

Even if the Plaintiff’s loan claims against the deceased were to be recognized only 400 million won, the amount of KRW 400 million out of the acquisition fund of KRW 950 million of the real estate No. 1 of the instant real estate should be deemed to have been repaid by the Plaintiff, and the amount of KRW 400 million of the loan claims against the deceased should be excluded from the amount of donated property. However, the instant disposition imposing inheritance tax, which calculated the taxable value of inherited property by adding it,

(C) Since the Plaintiff filed a return on the taxable value and tax base of the inheritance within the period for filing a return on the tax base of the inheritance tax, the Defendant is obliged to make a deduction of the reported tax amount under Article 69 of the Inheritance Tax and Gift Tax Act. However, since the Plaintiff excluded the Plaintiff from the “deduction of the reported tax amount because it did not make a return on the aggregate of the value of the donated property in the inherited property,” the instant disposition imposing additional tax on the donated property added to the value of the inherited property was unlawful, and thus, again imposing additional tax on the inherited property is unlawful.

B. Relevant statutes

Attached Form 1 is as shown in the relevant statutes.

C. Determination

1) Whether the imposition of gift tax of this case is lawful

A) First, we examine whether the Plaintiff received each gift of KRW 950 million from the Deceased, KRW 280,000,000,000 for acquisition of the instant real estate No. 2 from the Deceased, KRW 280,000 for acquisition of the instant real estate, and KRW 500,000 for deposit.

As a matter of principle, the taxation authority establishes the facts of donation of property, which is a requirement to impose gift tax, so if the tax authority establishes a certain occupation at the time of acquisition of the property, and there is a person who has a substantial income from the same, even if the funds required to acquire the property are not presented daily, the portion of the funds required to acquire the property cannot be deemed to have been raised by another person, unless there are special circumstances. However, if a person without a certain occupation or income does not have any money source enough to clearly present the sources of the funds required to acquire the property, and his/her lineal ascendant or spouse, etc. have any financial ability to make a donation, it shall be reasonable to presume that the funds were received from the person with a financial power to estimate the donation, and as such, the tax authority should prove that there is a financial ability to donate the property to the donor, as well as that there is no certain occupation or income (see, e.g., Supreme Court Decision 2003Du10732, Apr. 16, 2004).

In light of the above legal principles, the following circumstances that can be recognized by the above evidence, namely, (i) the Plaintiff acquired real estate Nos. 1 and 2 of this case or deposited KRW 500 million in the account under the name of the Plaintiff, and (ii) the Plaintiff did not appear to have any particular revenue sources as a family owner, and (iii) the Plaintiff did not properly state the source of KRW 500 million deposited in the name of the Plaintiff. (iv) On the other hand, the Deceased, the spouse of the Plaintiff, operated a large number of business entities from December 20, 1968 to December 20, 2010, with high income, and had considerable real estate assets at the time of death, and (iv) the Plaintiff did not have any funds to pay KRW 500 million to the Plaintiff, and (v) the Plaintiff did not appear to have received KRW 500,000,000,000,000,000,000 from each of the above donations.

B) Next, we examine whether the Plaintiff’s loan claims against the Deceased amounting to KRW 1.2 billion exists.

According to Eul evidence No. 4, Eul evidence No. 10-4 and Eul evidence No. 21, respectively, the court below established the right to collateral security which was recovered by the state through the lawsuit of the deceased 】 Busan Jin-gu 】 Dong 00-0 1,002 m2 (hereinafter referred to as "third real estate of this case") on July 26, 1997. After the plaintiff obtained additional loans from a financial institution, the priority right in the name of the plaintiff was cancelled, but it was newly established, and the above priority right in the name of the plaintiff remains in existence until the deceased's death. However, in light of the above evidence and the whole purport of arguments, it is difficult to recognize that the plaintiff did not have any evidence as to the above loan of KRW 1.2 billion, and that there was no evidence to acknowledge the existence of the right to collateral security as stated in the evidence and evidence No. 2400 million m2 as to the deceased's loan of KRW 1.5 billion m200,000.

C) Next, we examine whether the Plaintiff’s loan claims against the Deceased amounting to KRW 400 million.

"(1) The above facts are as follows: Gap evidence 4, Gap evidence 8, Eul evidence 9-1 to 16, Gap evidence 11 (hereinafter "this case certification"). On the other hand, the plaintiff submitted the original copy as reference material. The plaintiff's appraisal of the documents (the plaintiff after the conclusion of the pleading) appears to be 00 billion won when it appears to be 1, physical and external observation, and 90 billion won when it appears to be 10,000 won or less, 10,000 won or less for the purpose of 90,000 won or more, 10,000 won or more, 10,000 won or more, 10,000 won or more, 10,000 won or more, 30,000 won or more, and 9,000 won or more, and 9,000 won or more, 9,000 won or more, 9,000 won or more, and 9,000,0,00 won evidence or more.

② On July 26, 1997, with respect to the third real estate of this case, the deceased and the mortgagee were established with the maximum debt amount of 1.2 billion won, and the registration of the establishment of the collateral was continued until the time of the deceased's death. This was found to have been through the lawsuit for recovering the third real estate in accordance with the terms of the agreement in the letter of confirmation of this case. After the deceased found the third real estate through the lawsuit for recovering the loans of this case, it appears that the plaintiff was established with the right to collateral on the third real estate of this case (the defendant, as well as the deceased, around the time when the third real estate of this case was established to obtain additional loans from the bank, the senior collateral in the name of the deceased was temporarily cancelled, and the senior collateral was newly established with the second real estate in order to recover the third real estate of this case, and it was argued that the deceased was established with the intent that the secured debt was established in the future, but it is difficult to recognize that there was no false debt in the above plaintiff's name at the time of this case.

③ At the time of the lending of each of the money stated in the instant confirmation document, the victim appears to have been or was in the process of a large number of property restitution lawsuits, and it appears that there was a need for considerable litigation costs, and that the Plaintiff who had been maintaining a relationship with the Plaintiff at the time was requesting the lending of money.

④ In light of the circumstances that the Plaintiff did not separately submit a separate loan certificate for each of the loans stated in the instant confirmation document at the time. However, the Plaintiff may lose the loan from the date of the lending, and whether the Plaintiff and the Deceased did not prepare a separate loan certificate for a considerable amount of KRW 400 million as the loan was accumulated, and the Plaintiff could only have prepared and received the instant confirmation document to the Plaintiff, it is difficult to deny the content of the instant confirmation document solely on the ground that there was no separate loan certificate.

⑤ The Plaintiff, at the time, owned Kim Sea 】 00-0 to 246.95 square meters as indicated in the instant certificate of confirmation, but sold the above real estate on July 15, 1993, and paid KRW 11,982,220 on August 31, 1993. On September 28, 1993, the Plaintiff had paid KRW 1,284,30 on the land excess profit 】 1,284,300, and the Plaintiff appears to have been sentenced to imprisonment with prison labor for 105,000,000 from Busan District Court for 200,000,000,000 won x 94,000 won x 9,000 won x 1,000,000 won x 9,000 won x 1,000,000 won x 9,000 won x 15,005.

6. It appears that there was no reason for the deceased to make a false confirmation document to the Plaintiff around the year of the preparation of the instant confirmation document.

(2) Therefore, in full view of the above facts and circumstances, it is reasonable to deem that the Plaintiff lent the Defendant a total of KRW 400 million stated in the instant confirmation document, and otherwise, there is no clear and acceptable counter-proof to deny the contents stated in the instant confirmation document.

D) Sub-committee

If so, in acquiring the real estate of this case, it is reasonable to view that the plaintiff received the loan claim equivalent to KRW 400 million from the deceased, not from the deceased, and that the plaintiff received the loan claim equivalent to KRW 400 million from the deceased (in case where the defendant, and the plaintiff's loan claim is recognized, there is no dispute as to the fact that the plaintiff paid the acquisition fund of the first real estate of this case from the deceased at the time of receiving the acquisition fund of KRW 950 million from the deceased, as part of the acquisition fund of KRW 950 million, the acquisition fund of the first real estate of this case from the deceased, and on a different premise, the defendant who imposed the gift tax on September 1, 2008 by deeming that the plaintiff received KRW 950 million from the deceased as a donation of KRW 950 million,000,000,000,000,000,000,000 from September 1, 200).

Ultimately, the Plaintiff’s assertion on the imposition of gift tax of this case is with merit within the scope of recognition, and the remainder is without merit.

2) Whether the instant disposition of inheritance tax was lawful

A) Whether Article 19(2) and Article 19(3) of the current Inheritance Tax and Gift Tax Act amended after the decision of inconsistency with the Constitution apply to this case (the issue of retroactive effect of the decision of inconsistency with the Constitution), and whether the requirements for spouse inheritance deduction under Article 19 of the Inheritance Tax

(1) Whether Article 19(2) and (3) of the current Inheritance Tax and Gift Tax Act amended after the decision of inconsistency with the Constitution is applicable to this case

(A) Facts of recognition

① On August 25, 2010, after the deceased’s death, SongB et al. filed a lawsuit against the Plaintiff, SongCC, and SongD to the Busan District Court Decision 2010Gahap15755 on August 25, 2010, to the effect that SongB et al. entered into an agreement between the deceased and his/her heir to grant a private donation for part of the real estate possessed by the deceased, and that the procedures for the registration of ownership transfer of some real estate shall be complied with. On May 23, 2011, the said lawsuit was withdrawn on June 13, 2011, where the agreement on the division of inherited property was smoothly concluded.

② Under Article 19(2) of the Inheritance Tax and Gift Tax Act, in order for a spouse’s inheritance deduction, and for the inheritor to obtain a spouse’s inheritance deduction, the spouse’s inherited property shall be divided (where it is necessary to register, register, transfer, etc., the registration shall be made) by six months from the end of the month in which the date of commencing the inheritance falls, and the heir shall report the division of the inherited property to the head of the competent office within the place of tax payment by the due date of the division of the inherited property, but the Plaintiff did not complete the division of the inherited property within the above period, and the Plaintiff did not report the division to the Defendant, who is the head of the office having jurisdiction over the place of tax payment.

Article 19(2) of the former Inheritance Tax and Gift Tax Act, which is identical with Article 19(2) and (3) of the Inheritance Tax and Gift Tax Act, on May 13, 2012, before the Plaintiff filed the instant lawsuit on June 25, 2012, does not conform with the Constitution, on the grounds delineated below, with respect to Article 19(2) of the former Inheritance Tax and Gift Tax Act, which is identical with Article 19(2) and (3) of the same Act. The foregoing provision of the Act, “ continuously applies until the legislators revised the said Act with the deadline of December 31, 2013,” “The decision of inconsistency with the Constitution becomes final and conclusive (hereinafter “the decision of inconsistency with the Constitution”),” and “The Constitutional Court Decision of 2009Hun-Ba190, May 13, 2012,” and “The principle of proportionality and the principle

Article 19(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11835, Jan. 1, 2001) provides that the spouse of the inheritee shall not attempt to transfer inherited property without compensation by means of transfer of inherited property after having obtained inheritance deduction, and that there is a legitimate legislative purpose for early determination of tax relations with respect to inheritance. However, in cases where there are unavoidable circumstances where it is difficult to complete the division of property within the statutory period because the substantive dispute over inheritance is ongoing, such as inheritance division trial, there is no way to reflect the result of the trial in calculating inheritance. However, once the above period expires, it violates the principle of proportionality by uniformly denying the spouse inheritance deduction, thereby infringing on the claimant’s property rights, and further, it is equally treated as the inheritor who has not completed the division of property within the statutory period due to inevitable

B. The need for the ruling of inconsistency with the Constitution and provisional order

Article 19(2) of the former Inheritance Tax and Gift Tax Act is unconstitutional because it infringes on the claimant's property right and right to equality. The reason why the above provision is unconstitutional is not a requirement for spouse's inheritance deduction, but a request for division of property is not made within a certain period of time, but a remedy is not provided for any inevitable delay due to external circumstances, such as litigation. In such a case, the legislator's decision whether to provide specific remedy is basically within the legislative discretion, considering the overall circumstances, which is basically a matter of decision made by the legislator, and where the above provision is simply unconstitutional, the heir who does not receive division of property without a justifiable reason will be subject to unfair result applied without the inheritance deduction. In such a case, the decision of unconstitutionality shall be rendered instead of a decision of unconstitutionality as to the above provision.

No later than the earlier date, legislators should prepare new legislation until December 31, 2013, and the above provision of legislation is desirable to apply temporarily until the unconstitutionality is removed by the improvement legislation.

Article 19(3) of the former Inheritance Tax and Gift Tax Act is amended by the current Inheritance Tax and Gift Tax Act, and Article 19(3) of the current Inheritance Tax and Gift Tax Act provides that "if an inevitable reason is due to a lawsuit or a request for adjudication, it shall be deemed that the inherited property shall be divided within the time limit for division of the inherited property is filed within six months from the day following the day on which the lawsuit or a request for adjudication is completed," and Article 5 of the Addenda of the current Inheritance Tax and Gift Tax Act (No. 2168, Jan. 1, 2014), which is the amended law, provides that "The amended provisions of Article 19(3) of the former Inheritance Tax and Gift Tax Act shall apply to the portion on which the report on the division of inherited property is filed after this Act enters into force," "Article 19(2) of the former Inheritance Tax and Gift Tax Act shall apply from the portion on which the report on division of inherited property

(B) Determination

The Constitutional Court’s ruling of inconsistency with the Constitution ordering provisional application of statutes shall be determined based on the actual purport of the order to continue to apply, and there is no reason to treat the pertinent case or concurrent cases differently (see, e.g., Supreme Court Decision 2008Du15596, Jan. 15, 2009).

"위 법리에 비추어 이 사건을 살피건대, 배우자 상속공제 제도의 목적, 이 사건 헌법불합치결정의 내용 및 그 추된 이유，현행 상속세및증여세법 제19조 제3항 규정의 내용 및 그 시행 시기 등에 비추어 알 수 있는 다음과 같은 사정들 즉, ① 헌법재판소는배우자 상속공제의 요건으로서 일정한 기한까지 재산분할을 요구하고 있는 구 상증세 법 제19조 제2항은 부의 무상이전 시도를 방지하고, 상속세에 대한 조세법를관계를 조기에 확정하기 위한 것으로 정당한 입법목적을 가지고 있으나, 다만 위 법률조항이 위헌인 이유는 소송 등 외부적 사정에 의하여 재산분할이 부득이 지연된 경우에 대한 구제수단을 따로 마련하지 않은 데 있고, 구체적으로 어떠한 내용의 구제수단을 마련할 것인가는 입법자의 재량 영역에 있다^! 판단하여 잠정적용 형식의 헌법불합치결정을 한 점，② 그에 따라 입법자는 위와 같은 불합리한 상황을 해결하기 위한 여러 가지 구제수단 중 개정 법률조항에 따른 구제수단，즉소송 또는 심판청구가 종료된 날의 다음날부터 6개월이 되는 날까지 배우자상속재산분할기한을 연장'하는 방안을 택한 점, ③ 입법자는 그의 재량 범위 내에서 개정된 현행 상속세및증여세법 제19조 제3항을 소급적용하지 않고, '이 법 시행 후 상속재산을 분할하여 신고하는 분부터 적용한다'고 현행 상속세및증여세법 부칙에 규정한 점 등을 고려하면, 이 사건 헌법불합치결정은 개선입법의 시행시까지 구 상속세및증여세법 제19조 제2항을 확정적으로 계속 적용하도록 명한 것으로 봄이 상당하다.",또한 원고의 경우는 이 사건 헌법불합치결정 당시 소송계속 중인 당사자가 아니라 헌법불합치결정 이후에 제소된 자에 해당하는바, 만일 이러한 자들에까지 개정 법률조항인 현행 상속세및증여세법 제19조 제3항을 소급하여 적용하는 것은，위헌결정의 장래효 및 헌법재판소의 잠정적용 결정의 한계를 벗어나는 것일뿐더러, 기존의 규정에 따라 배우자 상속공제를 받지 못한 수많은 사람들이 다시 배우자 상속공제를 받는 결과를 가져오게 되어 국고의 초과부담I 초래하는 점 등에 비추어 보면，원고 등의 권리구제라는 구체적 타당성 등의 요청에 비하여 종래의 법령에 의하여 형성된 배우자 상속공제 제도에 관한 법적 안정성의 유지와 신뢰보호의 요청이 현저하게 우월하다고 보이므로, 이러한 측면에서도 이 사건 헌법불합치결정의 소급효는 제한되어야 한다고 할 것이다.

Therefore, a single mother, and Article 19(3) of the current Inheritance Tax and Gift Tax Act cannot be applied to the Plaintiff. In the case of the Plaintiff, Article 19(2) and (3) of the Inheritance Tax and Gift Tax Act shall be applied as is. Therefore, the Plaintiff’s assertion that Article 19(3) of the current Inheritance Tax and Gift Tax Act should be applied retroactively according to the purport of the

(2) Whether the spouse’s inheritance deduction requirement under Article 19 of the Inheritance Tax and Gift Tax Act is met

Article 19 of the Inheritance Tax and Gift Tax Act provides that a spouse's inheritance deduction may be deducted from the taxable amount of inheritance taxes within a certain limit. Paragraph 1 provides that such inheritance deduction shall not be always recognized, and Paragraph 2 provides that "if it is required to be registered, it shall be limited to the six months from the day following the standard return date for the inheritance tax) of the spouse's inherited property shall be divided (if it is required to be registered, it shall be limited to the day on which the registration, etc. is made) and reported within the prescribed period. In addition, Article 19 Paragraph 3 of the Inheritance Tax and Gift Tax Act provides that where the spouse's inherited property cannot be divided by the spouse's inherited property by the due date for inevitable reasons prescribed by Presidential Decree, it shall be deemed that the spouse's inherited property can not be divided within 6 months from the following day of the due date of the division of the spouse's inherited property, and in that case, it shall be limited to cases where the inheritor reports to the head of the tax office having jurisdiction over the place of tax payment by the due date of division of the spouse's.

(C) Therefore, since the plaintiff could not meet the requirements for the spouse's inheritance deduction, the plaintiff's assertion premised on the application of the spouse's inheritance deduction is without merit (in conclusion, 50 million won shall be deducted pursuant to Article 19 (4) of the Inheritance Tax and Gift Tax Act).

B) Determination on the illegality of the instant disposition on imposition of inheritance tax based on excessive aggregate of the value of donated property in advance

As seen earlier, the instant disposition of inheritance tax was unlawful since the Plaintiff calculated the tax amount of KRW 400 million, which was repaid by the Deceased, including the pre-donation property value.

Therefore, the plaintiff's above assertion is justified within the above recognition scope, and the repayment is received for the above part exceeding the above 400 million won, and there is no reason for the remaining argument that the above part is excluded from the pre-donation property value.

C) Determination as to the assertion on deduction of reported tax amount

Article 69(1) of the Inheritance Tax and Gift Tax Act provides that an amount equivalent to 1.1% of the amount calculated by deducting a certain amount from the amount of inheritance tax shall be deducted in cases where the inheritance tax base is reported within one association member's relocation right and one association member's relocation right and one's relocation right and one's relocation right and one's relocation right are deducted.

On September 27, 2010, the plaintiff reported to the defendant the tax base of inheritance tax of 553,724,195 and the amount of inheritance tax of 106,117,258 won to the defendant on September 27, 2010, one of which is one of the two, "1,725 won, which is equivalent to 10% of the amount of inheritance tax reported pursuant to Article 69 (1) of the Inheritance Tax and Gift Tax Act" can be deducted. Accordingly, the defendant judged otherwise that the plaintiff failed to meet the requirements for deduction of the amount of inheritance tax under the above Act on the ground that the plaintiff reported the tax base, etc. of inheritance tax without any prior donation property value. In this respect, the disposition of inheritance tax of this case is unlawful.

D) Determination on double taxation assertion

Article 47-3 (1) 1, Article 47-3 (5) of the Framework Act on National Taxes provides that when applying under-reported penalty tax on inheritance tax, an amount of tax equivalent to under-reported tax base shall be calculated in proportion to the tax base for correction of inheritance tax and under-reported tax base in proportion to the under-reported tax base, and then an amount of tax equivalent to the under-reported tax base shall be calculated by multiplying the under-reported penalty tax amount by the under-reported penalty tax rate.

In light of the above provisions, in imposing the inheritance tax in this case, the defendant imposed the penalty tax in accordance with the above provisions, and there is no illegality in applying the monthly penalty tax, and in this case, only the remaining portion which has already deducted the amount of the gift tax determined in advance from the amount of the gift tax determined in advance was imposed, and thus, it cannot be viewed as double taxation. Accordingly, the plaintiff's assertion is without merit.

E) Sub-decisions

Therefore, in imposing the inheritance tax of this case, the defendant and the defendant did not make a deduction of the reported tax amount as well as the calculation of the amount of 400 million won repaid by the deceased as the donated property in advance. Therefore, in this regard, the imposition of the inheritance tax of this case is unlawful.

(iii)the calculation of a reasonable amount of tax;

A) Determination of the legality of a disposition in a lawsuit seeking revocation of taxation is based on whether it exceeds a legitimate tax amount. The parties concerned may submit the objective tax base and tax amount and the arguments and materials supporting such tax amount until the closing of arguments in the fact-finding court. When the legitimate tax amount to be imposed lawfully is calculated and calculated based on such materials, only the portion exceeding the reasonable tax amount must be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995).

B) As seen earlier, when the Plaintiff calculated the amount of KRW 400 million out of the amount of KRW 950 million that was paid by the Deceased on September 1, 2008, not the amount of the donation but the amount of the loan repaid to the Deceased on December 28, 2009 and applied the omitted tax deduction in calculating the amount of the inheritance tax, the amount of legitimate tax calculation shall be as shown in the attached Table 2. < Amended by Presidential Decree No. 17588, Sep. 1, 2008; Presidential Decree No. 17065, Sep. 9, 2009; Presidential Decree No. 3660, Feb. 36, 2000; Presidential Decree No. 14600, Oct. 28, 2009; Presidential Decree No. 123000, Oct. 13, 2009; Presidential Decree No. 155584, Oct. 14, 2019>

Therefore, the portion exceeding KRW 159,00,00 among the imposition disposition of KRW 29,00,00 on November 1, 201 against the Plaintiff (this tax) (i.e., KRW 36,00,000 on July 9, 2009 + KRW 123,00,000 on the principal tax of the gift tax on the donated portion on December 28, 2009 + KRW 791,957,49 on the imposition disposition of KRW 854,21,530 on the gift tax (this tax) and the portion exceeding KRW 118,348,100 on the Plaintiff on December 7, 201, which exceeds KRW 18,50 on the gift tax (additional tax) and the amount of penalty tax on the donated portion exceeding KRW 123,00,000 on the gift tax (additional tax) and KRW 184,109,7410 on the gift tax on each of KRW 1814,20094.7.7

3. Conclusion

Then, the plaintiff's claim is justified within the above scope of recognition, citing it, and pathn agency.

The Gu is dismissed as it is without merit, and it is so decided as per Disposition.