Examination Transfer 2013-0077 (O4.25 2013)

The disposition of capital gains tax imposed on the heir due to the successful bid of the real estate acquired by inheritance is legitimate.

The successful bid price of the immovables acquired by inheritance shall be attributed to the inheritor, and even if the inheritor did not receive any payment, the successful bid price is delivered to the obligees of the inheritee and the obligation is repaid to them, thereby causing the economic effect of extinguishing the obligation of inheritance, so it can be said that there is a substantial income.

2013Guhap1301 Disposition of revocation of imposition of capital gains tax, etc.

1.A 2.B

Head of Suwon Tax Office

July 19, 2013

August 30, 2013

1. All of the plaintiffs' primary claims are dismissed.

2. All of the plaintiffs' conjunctive claims are dismissed.

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

1. The primary purport of the claim

Each disposition taken by the Defendant against Plaintiff A for the first time in March 1, 2013, on the part of 2010 portion of capital gains tax for the first time in March 1, 2013, on the part of Plaintiff BB, for the first time in March 1, 2013, on the part of 2010 portion of capital gains tax for the first time in March 1, 2013, is revoked.

2. Preliminary purport of claim

On March 1, 2013, the Defendant: (a) issued to Plaintiff A on March 1, 2013, the imposition of either OOOO or additional tax OO or additional tax OOO or additional tax OO or additional tax OO or additional tax 2010 portion on the part of Plaintiff BB on March 1, 2013 by the Defendant against Plaintiff AA; and (b) confirmed that the Plaintiffs can execute the imposition within the scope of the property inherited from the deceased CCC.

1. Details of the disposition;

A. OO-gu OOOOOOO-type apartment 2501 OOOOO-type 105 and 804 were owned by the original CCC. As CCC died on June 25, 2009, Plaintiff AA and Plaintiff BB, his child, were inherited, and the Plaintiffs filed a report on the succession limit approval, and the Plaintiffs were inherited as Busan District Court Family Branch Branch 2009Mo2639 on September 15, 2009.

B. After that, DDR, a mortgagee of the instant real estate, on December 3, 2009, received inheritance registration on behalf of the Plaintiffs on December 3, 2009, and on December 24, 2009, the Busan District Court rendered a decision to commence the sale of real estate on December 24, 2009 as Busan District Court Branch Branch Decision 19764 around 2009. The instant real estate was sold to EE on July 30, 2010 during the said voluntary auction procedure, and the bid price was fully distributed to the creditors of the deceased who were the decedent.

(C) On March 1, 2013, the Defendant, and the inherited property, concluded that the successful bid for the instant real estate constitutes transfer, and on March 1, 2013, the Plaintiff AA made a disposition imposing additional OOOO in accordance with the 2010 capital gains tax OOOOOO and the 2010 tax OOOOOO due to the failure to pay tax on the Plaintiff BB (hereinafter “instant disposition”), and on March 1, 2013.”

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

1) The primary claim

The plaintiffs were successors who made a qualified acceptance, and both the bid price of the real estate accrued from the above auction were distributed to inheritance creditors, and the plaintiffs did not belong to the transfer income of the real estate of this case. Thus, the disposition of this case imposing transfer income tax on the plaintiffs is against the principle of substantial taxation and the principle of fair taxation.

In addition, the plaintiffs are not fully responsible for the repayment of the inheritee's obligation to inheritance creditors with their own property, and are only responsible for the repayment of the inheritee's obligation at the same Do of the property to be acquired by inheritance, and the disposition of this case imposing capital gains tax on the inheritor is unlawful against the purport of the qualified acceptance system, which is to protect the inheritor.

2) Preliminary Claim

Even if the plaintiffs bear capital gains tax liability, and the capital gains tax on the disposition of this case is a debt to be borne in the course of disposing of inherited property for the repayment of inherited property, and it is reasonable to assume liability within the limit of inherited property with respect to tax liability corresponding to inheritance expenses in accordance with the purport of the qualified acceptance system for the protection of inheritors. Therefore, the plaintiffs seek confirmation that the plaintiffs can execute the capital gains tax obligation of this case within the limit of inherited property.

B. Determination

1) Judgment on the main claim

A) Determination as to the assertion that the substance over form and fair taxation are contrary to the claim

The voluntary auction of real estate for the execution of a mortgage is an act to realize the contents of a security right and constitutes "transfer of assets subject to capital gains tax under Article 4 (1) 3 and Article 88 (1) of the Income Tax Act", and in this case, the proceeds from sale of assets subject to capital gains shall belong to the owner of the real estate, and even if the owner of the real estate succeeds to the rights and obligations of the inheritee comprehensively from the commencement of inheritance, it is no different from the inheritor who granted simple approval, and thus, it shall be deemed the owner of the real estate (see Supreme Court Decision 2010Du13630, Sept. 13, 2012).

As seen above, the plaintiffs acquired the real estate of this case by inheritance without relation to the registration of transfer in the names of the plaintiffs upon the death of the deceased, and the bid price also belongs to the owner and transferor of the real estate of this case as capital gains. Although the plaintiffs did not receive any payment from the bid price, even if the bid price was paid to the creditors of the deceased, the plaintiffs have the economic effect of extinguishing the inheritance obligation by paying the auction price to the creditors of the deceased, and thus, the plaintiffs have a substantial income to the plaintiffs.

Therefore, the instant disposition, based on the premise that capital gains from the sale of the instant real estate belonged to the Plaintiffs who acquired the instant real estate, cannot be deemed as contrary to the principle of substantial taxation or the principle of fair taxation. The Plaintiffs’ assertion on this part is without merit.

B) Determination as to the assertion that it goes against the intent of the qualified acceptance system

The transfer income tax of this case, which is inherited property, imposed on the plaintiffs on the actual capital gains from the successful bid of this case, is not an inheritance obligation, but a qualified acceptance system merely limits the scope of liability, rather than limiting the existence of an obligation. The qualified acceptance system merely limits the scope of liability. Accordingly, the Plaintiffs’ transfer income tax liability of this case is not limited to the scope of the property acquired by inheritance. Accordingly, the instant disposition, based on the premise that the Plaintiffs had no payment of transfer income tax on the capital gains from the successful bid of this case, is contrary to the purport of the qualified acceptance system, which is the protection of inheritors. Accordingly, the Plaintiffs’ assertion is without

2) Determination on the conjunctive claim

With respect to the legitimacy of the part of the conjunctive claim in this case, the Administrative Litigation Act provides for appeal litigation and party litigation in order to relieve the infringement of the rights or interests of the people due to the administrative agency's illegal disposition, the exercise of public power, and non-exercise of power, etc., and appeal litigation is filed against the administrative agency's disposition or omission. The lawsuit is filed against the administrative agency's disposition or omission, and the state or local government which is one party to the legal relation is the litigation and other public law litigation as to the legal relationship based on the disposition, etc. of the administrative agency. Thus, the plaintiff's conjunctive claim against the defendant for confirmation that the transfer income tax imposition disposition in this case can be executed within the limit of inherited property is not subject to administrative agency's disposition or omission, and if the above claim is a party litigation, it cannot be considered an appeal litigation, and if the defendant is a party lawsuit, it shall be filed against the country, not the defendant, and the defendant, if the plaintiffs seizes the plaintiffs' proprietary property to collect the transfer income tax finalized by the disposition in this case.

3. Conclusion

Then, the plaintiffs' primary claims are all dismissed without merit, and the conjunctive claims in this case are inappropriate, so it is so decided as per Disposition.