The burden of proving that the disposal price of inherited property under Article 7-2 (1) of the Inheritance Tax Act is actually inherited and included in the "property acquired by inheritance" under Article 24 (1) of the Framework Act on National Taxes (=the taxation authority)

The provision of Article 7-2 (1) of the Inheritance Tax Act provides that in case where an ancestor disposes of inherited property within two years before the date inheritance commences, the proceeds from the disposal of the inherited property shall be inherited or donated in cash to an heir and the inheritance may be reduced unfairly, so in order to prevent this, the amount of the proceeds from the disposal of the inherited property shall be included in the taxable value of inherited property, recognizing that the heir inherited property under certain conditions is a cash inheritance, and thus, in order to prevent this, it shall not be deemed that the amount included in the taxable value of inherited property pursuant to the above provision is "property acquired by inheritance" under Article 24 (1) of the Framework Act on National Taxes and Article 11 (1) of the Enforcement Decree of the same Act unless it is proved that the proceeds from the disposal of inherited property are inherited in cash

Article 24(1) of the Framework Act on National Taxes, Article 11(1) of the Enforcement Decree of the Framework Act on National Taxes, Article 7-2(1) of the Inheritance Act, Article 3(1)1 of the Enforcement Decree of the Inheritance Tax

Supreme Court Decision 89Nu1490 Decided December 12, 1989 (Gong1990, 282) Supreme Court Decision 89Nu5577 Decided December 26, 1989 (Gong1990, 417) Supreme Court Decision 91Nu5730 Decided November 8, 1991 (Gong192, 143), Supreme Court Decision 92Nu1230 Decided October 23, 1992 (Gong192, 3319)

Plaintiff

Director of the District Office

Seoul High Court Decision 96Gu16119 delivered on January 22, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Summary of the judgment below

A. Facts acknowledged by the court below

On April 4, 1991, the deceased non-party 1 transferred to the non-party 2, 3 site and the building on the land (hereinafter the real estate in this case) of Gyeonggi-gun, Gyeonggi-do, his own possession on April 4, 1991, KRW 5,487,100 as transfer income tax, and died on November 23 of the same year after he voluntarily reported the transfer income tax of KRW 104,10,00. Accordingly, the defendant is the above deceased's transfer income tax of KRW 16,639,920, which should be additionally paid by the transfer of the real estate in this case, and its tax liability is equal to Article 24 (1) and (2) of the Framework Act on National Taxes, that the above deceased's wife non-party 3, his children, the plaintiff, non-party 4, 5, non-party 6, and non-party 7 succeeded to the above deceased's co-owned property, and thus, the plaintiff and the non-party 29506 and the above transfer income tax amount.

B. Parties’ assertion

The defendant asserts that the disposition of this case is lawful on the grounds of the above disposition grounds and applicable provisions of law, and the plaintiff sold the real estate of this case to 104,100,000 won, but the above disposition of this case was already consumed before the death of the above deceased, and only 8,1003, Dong 1003 at the time of the commencement of the inheritance of the above deceased, and the apartment was inherited by the non-party 7, one of co-inheritors, by agreement and division, and eventually, the plaintiff did not have a duty to pay the above transfer income tax that should have been imposed on the above deceased, since the above disposition of this case was not unlawful.

C. The judgment of the court below

Article 24 (1) of the Framework Act on National Taxes provides that "the heir (including testamentary donees) or administrator of inherited property under the provisions of Article 1053 of the Civil Act shall be liable to pay national taxes, additional dues and expenses for disposition on default imposed on or to be paid by the predecessor within the limit of the property acquired by inheritance." Paragraph (2) provides that "in cases of paragraph (1), if there are two or more heirs, each heir shall be liable to pay the national taxes, additional dues and expenses for disposition on default imposed on or to be paid by the predecessor according to his/her share of inheritance under the provisions of Articles 109, 1010 and 1012 of the Civil Act." Article 11 (1) of the same Act provides that "where there are two or more heirs, the heir shall be liable to pay the national taxes, additional dues and expenses for disposition on default imposed on or to be paid by the predecessor within the limit of the property acquired by inheritance, the amount of property acquired by inheritance shall be included in the taxable value of the predecessor under Article 24 (1) of the Enforcement Decree."

Therefore, the above deceased's use of the disposal price of the real estate in this case sold by the above deceased was examined, and as long as it is clear that the above deceased's consumption of the disposal price of KRW 81,100,000,000 among the disposal price of the real estate in this case, it is not sufficient to prove that the remainder of the disposal price of the real estate in this case was consumed of KRW 23,10,000,000, the above disposal price of the real estate in this case is objectively unclear at the time of the death of the above deceased, it shall be reasonable to view that the use of the above disposal price of the real estate in this case is objectively unclear. The above disposal of the plaintiff and co-inheritors, including the plaintiff, shall be deemed to be included in the co-inheritors's jointly inherited property. On the other hand, since it is clear that the above money is more than the amount of KRW 16,639,920,00,000, the above disposal price of the real estate in this case should be borne by the above deceased. Therefore, the plaintiff's assertion is legitimate.

2. Judgment of the Supreme Court

The provision of Article 7-2 (1) of the above Inheritance Tax Act provides that where an ancestor disposes of inherited property within two years before the commencing date of the inheritance, the proceeds from the disposal of the inherited property shall be inherited or donated in cash to an heir and the inheritance might be reduced unfairly, so in order to prevent this, the amount of the proceeds from the disposal of the inherited property shall be deemed to have been inherited in cash under certain conditions and included in the taxable value of inherited property. Thus, the amount included in the taxable value of inherited property pursuant to the above provision shall not be deemed to be the "property acquired by inheritance" under Article 24 (1) of the Framework Act on National Taxes and Article 11 (1) of the Enforcement Decree of the same Act unless it is proved that it was inherited in cash, unless it is included in the taxable value of inherited property, the burden of proving that the proceeds from the disposal of inherited property is included in the scope of "property acquired by inheritance" as a matter of principle in the tax authority (see Supreme Court Decisions 91Nu5730, Nov. 8, 191; 92Nu1230).

However, for the purpose of proving the above taxation requirement fact, the tax authority does not necessarily have to prove the fact that the disposal price of inherited property has actually been inherited in cash to an heir, but it is sufficient to prove the indirect fact that the disposal price of inherited property is presumed to have been inherited in cash to an heir in light of the empirical rule in the specific litigation process.

Therefore, in the case where the decedent disposed of the inherited property before the commencement date of inheritance, if it is proved that the proceeds from the disposal of the inherited property was inherited in cash in light of the empirical rule, it cannot be deemed unlawful for the defendant to impose the transfer income tax of this case against the plaintiff. Thus, the court should consider the purpose and circumstance of the disposal of the real property of this case, the health and property status of the above non-party 1 at the time of the above disposal, and whether the plaintiff could easily know about the consumption place of the above sale price in the living area like the above non-party 1, and clarify the existence of an indirect fact that can be presumed to have been inherited in cash to the plaintiff.

Nevertheless, the court below, on the premise that the disposal price of the property included in the taxable value of inherited property under Article 7-2 (1) of the above Inheritance Tax Act is included in the scope of "property acquired by inheritance" under Article 24 (1) of the Framework Act on National Taxes, has the burden of proving the opposing facts, and further, without examining whether the disposal price of the inherited property is an indirect fact presumed to have inherited to the heir, the rejection of the plaintiff's above assertion can not be deemed to have committed an unlawful act by misunderstanding the legal principles under Article 24 (1) of the Framework Act on National Taxes, which led to the failure to exhaust all necessary deliberations. The purport of pointing

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)