[상속세등부과처분취소][집38(3)특,291;공1990.12.15.(886),2458]
(a) The case holding that service of notice for tax payment of inheritance tax on a minor himself/herself is lawful, even if a guardian is appointed to a minor aged 15 years who resides overseas;
(b) If a notice of tax payment sent to the address of a person liable for duty payment in the United States was not delivered by a U.S. post and returned with the reason that the notice was “Unn Agency”, whether the notice of tax payment was served by public notice
(c) Whether the registration of real estate substantially disposed of one year prior to the commencement date of inheritance remains in the name of the inheritee may be included in the inherited property (negative)
A. If the plaintiff, who is a taxpayer of inheritance tax, has a minor who is 15 years of age and has his domicile overseas, and the plaintiff's guardian appointed by the military court of the United States of America did not report the appointment of a tax manager under Article 21 of the Inheritance Tax Act, the defendant, who is the tax authority, was in a very difficult place to grasp the plaintiff's legitimate legal representative. Thus, the delivery of the notice for tax payment of inheritance tax of this case, made the minor plaintiff, who is considered to have an intelligence to change the Ri, as the receiver, is lawful.
B. If the U.S. post office, which received a notice of tax payment against the plaintiff who had his domicile in the U.S., notified three times of the arrival of the above mail at the plaintiff's domicile, but failed to deliver it ultimately, returned it to Korea with the reason that "unregistered agency" was "when it is difficult to serve" under Article 11 (1) 2 of the Framework Act on National Taxes, and thus, it is legitimate to serve the above notice by public notice.
C. If a real estate was actually disposed of one year prior to the commencement date of inheritance by sales contract, etc., even if the registration of the real estate remains in the name of the inheritee, it shall not be included in the inherited property.
(a) Article 8 of the Framework Act on National Taxes, Article 21 of the Inheritance Tax Act; Article 11(1)2(c) of the Framework Act on National Taxes;
C. Supreme Court Decision 88Nu3185 decided Feb. 14, 1989 (Gong1989,433)
Attorney Yang Jong-soo et al., Counsel for the defendant-appellant
Head of Yeongdeungpo Tax Office
Seoul High Court Decision 88Gu386 delivered on March 20, 1990
The judgment below is reversed and the case is remanded to Seoul High Court.
1. We examine the first ground for appeal.
According to the reasoning of the judgment below, the court below determined as follows: (a) the defendant determined the inheritance tax and defense tax of this case on the ground that it was impossible for the plaintiff to serve the plaintiff by means of public notice, etc. pursuant to Article 11(1)2 of the Framework Act on National Taxes; (b) the plaintiff's notice was sent to 127 U.S. No. 5 (Rt5, 127 Peasy N.C. 2814, U.S.C. 2814), which is the plaintiff's domicile; (c) but the mail was returned to the defendant's address on the ground that it was difficult for the plaintiff to serve the plaintiff by public notice; and (d) the plaintiff's notice was sent to the plaintiff's address on July 2, 1971 by public notice; and (d) the plaintiff's notice was sent to the non-party 1 to the plaintiff's office on the ground that it was not possible to serve the plaintiff's inheritance tax of this case on the non-party 1's domicile.
In light of the records, if the plaintiff has his domicile overseas in the U.S. and the taxpayer has no domicile or domicile in the Republic of Korea, Article 21 of the Inheritance Tax Act provides that the tax manager shall be appointed to submit documents under Article 20-2 and report to the Government to handle the tax payment and all other matters regarding inheritance tax, but there is no evidence to acknowledge that the plaintiff's guardian filed a report under the above provision. Thus, the defendant who is the tax authority is very difficult to identify the legitimate legal representative of the plaintiff. Considering these circumstances, the court below's decision that the delivery of this case was legitimate because the plaintiff, who is a minor, who is considered to have an intelligence to distinguish interest, was sent as the delivery number, is acceptable and there is no error in the misapprehension of the legal principles as to the plaintiff's delivery of this case's notice to the plaintiff, which is not legitimate, since the defendant's delivery of this case's notice to the plaintiff by public notice to the 10th of March 16, 1987 and the defendant's delivery of this case's notice to the plaintiff.
2. We examine the second ground for appeal.
According to the reasoning of the judgment of the court below, the court below acknowledged that the non-party 1,230-157 site and its ground building among the inherited property of this case on April 1986, 1986, were purchased from the above-mentioned plenary road, which is the plaintiff's deceased father on December 3, 197, and filed a lawsuit for claiming ownership transfer registration against the plaintiff on June 22, 1987, when the Seoul High Court, which was the appellate court of this case, received 10,000,000 won from the above-mentioned unconstitutional rule and decided that the above real estate should not be subject to ownership transfer registration, since Article 1 of the Inheritance Tax Act provides that the inheritance tax shall be imposed upon the deceased's address or domestic property, and it can not be subject to ownership transfer registration even if the above real estate was not subject to ownership transfer registration prior to the above 00th inheritance tax's death. Thus, if the above real estate was not subject to ownership transfer registration prior to the above 000th inheritance tax.
However, inheritance tax is a tax system based on the ability to acquire property without compensation due to inheritance, etc., and considering the purport of Article 7-2 of the Inheritance Tax Act and Article 3(3) of the Enforcement Decree of the same Act, if a real estate was actually disposed of by a sales contract, etc. one year prior to the date of commencing the inheritance, even if the registration on the real estate still exists in the name of the inheritee, it may not be included in the inherited property (see Supreme Court Decision 88Nu3185, Feb. 14, 1989).
In this case, as alleged by the Plaintiff, the real estate itself cannot be included in the inherited property, if the inheritance of this case was commenced under the condition that only the remainder payment remains, on December 3, 1977, when the real estate was already sold to the Non-Party Constitutional Court of this case before the inheritance commenced ( June 29, 1985) and the intermediate payment is terminated.
Therefore, the court below erred by misapprehending the legal principles as to the scope of inherited property, thereby adversely affecting the conclusion of the judgment, on the ground that the registered title of the real estate of this case was in the name of the decedent at the time of commencing the inheritance without examining the sale and purchase relation with the real estate of this case by the plaintiff principal, and rejected the plaintiff's assertion on the ground that it constitutes inherited property.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Chang-chul (Presiding Justice)