Plaintiff 1 and 7 others (Law Firm Dongin, Attorneys Lee Han-san et al., Counsel for the plaintiff-appellant)

port of origin

December 23, 2015

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The imposition disposition of inheritance tax by the Defendant against the Plaintiffs on December 8, 2014 shall be revoked.

1. Details of the disposition;

A. Nonparty 1: (a) as his child Nonparty 2, Plaintiff 4, Plaintiff 5, Plaintiff 6, Plaintiff 7, and Plaintiff 8; (b) on August 10, 2007, Nonparty 1 was the wife of Nonparty 2 and Nonparty 1; (c) on August 10, 2007, KRW 50,000,000 to Plaintiff 2, who was the grandchildren between Nonparty 2 and Plaintiff 1; (d) KRW 300,000,000 to Plaintiff 3; and (e) from August 9, 2007 to February 6, 2009, Plaintiff 222,50,000,000,000 and KRW 7,50,000 to Plaintiff 1; and (e) on the gift tax of Nonparty 2, Nonparty 6, and Nonparty 7, the amount of gift tax of KRW 30,00,00,00 for each of the following reasons.

2. Cash and real estate on August 10, 207: 10, 500,000 cash on August 10, 207, 200, 100,000,000 89,000,000 on August 10, 2007; 77,514, 747,510,100 74,104, 164,254, 2303, 209, 300,000 on August 10, 207, 2000, 300,00,000,000,000, 40,000, 10,000,000, 40,000,000 on cash on May 20, 205, 2009

B. Meanwhile, on the other hand, Nonparty 1 died on February 22, 2013, which was after each of the above donations, without leaving another property on February 22, 2013, and Nonparty 2 died on November 21, 2008, which was earlier, Nonparty 1, Plaintiff 2, an inheritor of Nonparty 2, and Plaintiff 8, as an inheritor of Nonparty 2, jointly inherited Nonparty 1 with the rest of the Plaintiffs. The Plaintiffs did not file a report on the taxable value, etc. of inheritance on the grounds that Nonparty 1 did not have any property remaining at the time of the commencement of inheritance.

C. From August 11, 2014 to October 8, 2014, the Defendant did not have inherited property at the time of Non-Party 1’s death. However, considering that the property donated by Non-Party 1 was included in the taxable value of inherited property that was donated by the decedent to his/her heir within 10 years before the date on which the inheritance commences, the Defendant calculated the tax amount of KRW 2,512,514,10 by regarding the aggregate of the donated property as the taxable value of inherited property, and calculated the tax amount of KRW 759,05,640 by deducting KRW 414,254,230 from the amount of the gift already paid by the Plaintiffs, and calculated the remainder of KRW 344,751,410 by deducting KRW 414,751,410 from the amount of the inheritance tax already paid by the Plaintiffs. In addition, the Plaintiffs’ total tax amount of KRW 68,950,282,4162,65.

【Ground of recognition】 The fact that there has been no dispute, Gap's 1 through 3, Eul's 1 through 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) Around August 2007, Nonparty 1 was alive of Nonparty 2 at the time of donation of each of the above property to Plaintiffs 1, 2, and 3, and thus, Nonparty 1’s inheritor becomes Nonparty 2. Nonparty 1, 2, and 3, who are Nonparty 2’s spouse or children, are not Nonparty 1’s heir. Thus, even if Nonparty 1 donated the property to Plaintiffs 1, 2, and 3, the decedent cannot be deemed to constitute “property donated to the heir,” and even if Nonparty 1 donated the property to Nonparty 1, 2, and 3, who was the inheritor of Nonparty 2 after the donation, was deceased, the instant disposition taken by Nonparty 1, 2, and 3, who was the inheritor of Nonparty 2, was merely inherited by Nonparty 1 on behalf of Nonparty 2, and was unlawful.

2) At the time of Nonparty 1’s death, the Plaintiffs were unable to report and pay inheritance tax on the ground that they were unable to know that their pre-living donated property was added to inherited property pursuant to the former Inheritance Tax and Gift Tax Act, and there are justifiable grounds as to such failure. As such, the part imposing additional tax among the instant disposition is unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Determination on the assertion that the inherited property shall not be added to the inherited property

A) Article 13(1)1 of the former Inheritance Tax and Gift Tax Act provides that the value of property donated by an ancestor to his heir within 10 years prior to the commencement of the inheritance shall be included in the taxable value of the inheritance. Such provision aims to prevent an act of preventing unfair reduction of the inheritance tax by evading the application of the high-rate inheritance tax rate by donating the property to his heir before the commencement of the inheritance (see Supreme Court Decision 94Nu2480 delivered on August 26, 1994). In addition, the inheritance commences due to the death of the inheritee, and the heir comprehensively succeeds to the rights and duties of the inheritee at the same time as the death of the inheritee (see Articles 97 and 105 of the Civil Act). Therefore, the scope and the base point of time of appraisal of the inherited property is when inheritance begins (see Article 60(1) of the former Inheritance Tax and Gift Tax Act).

As to this case, in light of the time of the existence of a donor’s heir, the above plaintiffs 1, 2, and 3’s existence at the time of non-party 1’s donation of each of the above property from non-party 1, the status of heir at the time of the commencement of inheritance should be determined at the time of non-party 1’s inheritance. However, as seen earlier, the above plaintiffs 1, 2, and 3 died first at the time of non-party 1’s commencement of inheritance, and the above plaintiffs 1 died on behalf of non-party 1. As seen above, the existence or scope of inheritance tax caused by the death of non-party 1’s heir should be determined at the time of commencement of inheritance. Thus, the above plaintiffs’ property donated from non-party 1’s heir at least 10 years prior to the commencement of inheritance should be added to the value of inherited property (the plaintiffs’ assertion is premised on whether the donee’s heir’s gift is added to inherited property, and thus, it cannot be accepted at the time of the commencement of inheritance.

B) In addition, according to Articles 27 and 57 of the former Inheritance Tax and Gift Tax Act, the Plaintiffs also provide that a certain rate shall be added to the amount of tax on inheritance or donation involving the households, but this provision shall not apply to inheritance by representation. However, Plaintiffs 2 and 3 asserted that it is unlawful to impose an additional tax pursuant to each of the above provisions since they are married by representation.

Article 27 of the former Inheritance Tax and Gift Tax Act provides that the amount of tax shall be increased at a certain rate in cases where there is an inheritance or testamentary gift involving the household building, but the same shall not apply to cases where the heir or testamentary donee becomes a succession, and Article 57 of the same Act provides that the amount of tax shall be calculated at the same rate as to the donation involving the household building and the donation involving the death of the donor. However, the same shall not apply to cases where the lineal descendant of the donor who was a lineal descendant of the deceased who was the lineal descendant of the deceased. However, as seen earlier, the defendant in this case determined that the plaintiff 2 and the plaintiff 3 succeeded to the non-party 1 as a substitute inheritor, and calculated the amount of inheritance tax by adding the amount of inherited property to the value of inherited property, and did not increase the amount of tax by applying the above provision. Since the donation is alive at the time of receiving each property from the non-party 2 and the plaintiff 3, as such donation was made a donation that fell under the household building, and thus, the inheritance tax rate cannot be imposed on all of this case.

C) Therefore, we cannot accept this part of the Plaintiff’s assertion.

2) Determination as to the assertion that the penalty part is illegal

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims where a taxpayer violates a duty to report and pay taxes as prescribed by the law without justifiable grounds, and the taxpayer’s intent or negligence is not considered, and the land or mistake of the law does not constitute justifiable grounds (see, e.g., Supreme Court Decision 2013Du1829, May 23, 2013). Even in the Plaintiffs’ assertion, the Plaintiffs’ failure to know that each of the living donated property was added to inherited property pursuant to the former Inheritance Tax and Gift Tax Act is merely the land or mistake of the law. Therefore, such circumstance alone does not constitute justifiable grounds for the Plaintiffs’ failure to fulfill their duty to report and pay the above inheritance tax. This part of the Plaintiffs’ assertion is rejected.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Cho Sung-nam (Presiding Judge)