early 2012:4155 ( December 03, 2012)

This disposition is legitimate that the heir who solely inherited the property through a division agreement has succeeded to all the tax liabilities of the inheritee.

It is reasonable to view that the sole heir succeeds to all the obligation to pay the capital gains tax of the inheritee in the case of the sole inheritance of the property through the division consultation. Therefore, the disposition based on the premise is legitimate. However, the notice of imposition of additional tax is defective because there are defects such as omitting the matters required by the relevant statutes.

2013Gudan1073 Revocation of Disposition of Imposing capital gains tax

United Kingdom AAA

Daejeon Head of the District Tax Office

June 28, 2013

July 26, 2013

1. The Defendant’s imposition disposition of KRW 000 of the capital gains tax for the year 2001 against the Plaintiff on April 2, 2012 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 3/5 are assessed against the Plaintiff, and the remainder are assessed against the Defendant.

The Defendant’s disposition of imposition of capital gains tax of KRW 000 (including additional tax) for the year 2001 against the Plaintiff on April 2, 2012 shall be revoked.

1. Details of the disposition;

A. On November 26, 2001, this BB, the husband of the Plaintiff, transferred the land substitution of 1014 square meters (the land of this case was determined as 000 m2 square meters by the land readjustment project of this case on June 19, 2002, and hereinafter referred to as "transfer land of this case"), and reported and paid the transfer income tax with 000 won, while the Defendant investigated the actual transaction value of the transfer land of this case on November 2005 and notified the transfer value as 00 won.

B. This BB died on February 12, 2005, and on January 26, 2012, the Plaintiff and its children (EE, E, E, EF, EG, EH, H, and H, this II) are co-inheritors of the network BB, are owned by the Plaintiff on January 13, 2012, Daejeon Sung-gu Daejeon, Daejeon, 000 Forest and 21,719 square meters (hereinafter “the instant inherited land”). The remaining co-inheritors except the Plaintiff (hereinafter “the instant inherited land”). On January 26, 2012, the Plaintiff had a separate inheritance registration on the instant inherited land.

C. Around 2011, the Plaintiff filed a lawsuit to seek monetary payment against SongO who mediated the sale and purchase of the instant transferred land (Seoul District Court 201DaDa142157). In the said lawsuit, the Daejeon District Court notified the Defendant of the fact that SongO submitted the actual sales contract for the instant transferred land, the purchase price of which is KRW 000, in which the purchase price is KRW 00.

D. Accordingly, the Defendant again investigated the buyer, etc. and corrected the transfer value of the transferred land of this case as 000 won (sale price of 000 won + replotting settlement money of 000 won) and calculated the transfer income tax for 2001 as 000 won, and on April 2, 2012, the Plaintiff was deemed to have solely inherited the deceasedBB’s inherited property by agreement division, and thus, imposed and notified the said transfer income tax on the Plaintiff pursuant to Article 24(1) of the Framework Act on National Taxes.

E. On June 20, 2012, the Plaintiff appealed against the above taxation and filed an objection with the Director of Daejeon Regional Tax Office, but the Director of Daejeon Regional Tax Office dismissed the Plaintiff’s objection on July 19, 2012, and the above procedure of objection is underway, the Defendant calculated as mentioned above, as indicated in the column of “the details of calculation of transfer income tax”, and as mentioned in “the details of calculation of transfer income tax” in the “the details of calculation of transfer income tax”, and notified the Plaintiff on October 5, 2012 (hereinafter referred to as “the instant disposition”).

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 9, and Eul evidence (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) If there are two or more successors, even if one of them actually succeeded to the property of the inheritee, the obligation to pay taxes of the inheritee succeeded to by such successors shall be limited to the scope of the amount calculated in accordance with the inherited portion under Articles 1009, 1010 and 1012 of the Civil Act, but it shall be limited to the scope of the amount calculated in accordance with the inherited portion (see, e.g., Supreme Court Decision 96Nu973, Oct. 24, 1997) and the Plaintiff shall succeed to the networkBB tax liability only within the scope of the statutory inherited portion (3/13), but the instant disposition is unlawful on the premise that the Plaintiff succeeded to all the liability to pay taxes of the deceasedBB

2) Of the transfer income tax imposed on the instant disposition, the part in excess of the Plaintiff’s statutory inheritance portion was imposed on the purport that joint payment is made with other co-inheritors, but the tax notice on the instant disposition does not stipulate at all the grounds for taxation on other co-inheritors. Therefore, the instant disposition is still unlawful.

3) The imposition of additional tax solely on the sum without disclosing the type, basis for calculation, etc. of additional tax is unlawful.

4) After the instant disposition, the Defendant served a tax payment notice stating only the corrected tax amount while notifying the correction. The above tax payment notice alone does not distinguish whether the capital gains tax imposed on the Plaintiff is the principal tax and the additional tax, and the basis for calculation cannot be known at all, and the instant disposition is unlawful since both the principal tax and the additional tax are contrary to the lawful method of tax payment

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) As to the first argument

Where inheritance begins, an inheritor shall succeed to the liability to pay taxes of the inheritee, and where there are two or more inheritors, each inheritor shall be liable to pay national taxes, etc. calculated by dividing the inherited portion according to the inherited portion pursuant to Articles 1009, 1010, 1012 (Division by Will) and 1013 (Division by Will) of the Civil Act to the extent of the property acquired by inheritance (Article 24(1) and 24(2) of the Framework Act on National Taxes). Examining the case in accordance with the above provisions of the Act, the Plaintiff shall be liable to pay taxes jointly and severally to the extent of the property acquired by inheritance to the extent of the property acquired by inheritance (Article 24(1) and 24(2) of the Framework Act on National Taxes). The Plaintiff’s assertion that the inheritance land in this case was inherited by another co-inheritors and completed consultations on division of inherited property with the intention of not inherited property, and the Plaintiff shall not be deemed to have any other inherited property than the inherited land in this case by the foregoing divided agreement.

2) As to the second argument

As seen earlier, the instant disposition is based on the premise that the Plaintiff succeeded to all the net BB’s tax liability, and otherwise, this part of the assertion premised on the existence of joint and several tax liability between the Plaintiff and other co-inheritors is without merit.

3) As to the third argument

When both principal and additional taxes are to be imposed according to a single tax payment notice, the individual tax amount and calculation basis thereof should be stated in the tax payment notice separately, and when several kinds of additional taxes are to be imposed, it is natural that the taxpayer can per se know the details of each tax assessment by classifying the amount and calculation basis thereof by different types of additional taxes. As such, the imposition of additional taxes is not unlawful (see Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012; 2010Du12347, Oct. 18, 2012). In this case, the whole purport of the pleadings at the time of the instant tax payment notice, and the additional taxes are not classified by the type of evidence No. 1, and only the sum are included in the calculation basis of the additional taxes, and thus, the tax payment notice in this case contains defects such as omitting the matters required by the relevant Acts and subordinate statutes, and thus, the Plaintiff’s allegation that the imposition of additional taxes in this case is unlawful.

4) On the fourth argument

It is recognized that Gap evidence 1 and Eul evidence 2 were added to the purport of the entire pleadings, and the defendant served a tax payment notice stating only the remaining amount of tax after entering both the tax base, tax rate, and calculated tax amount at the time of the disposition in this case, and after correcting the amount of tax, the tax payment notice stating only the reduced amount of tax after correcting the amount of tax. However, even though the tax authority issued a tax payment notice stating necessary matters, such as the basis for calculation of tax amount at the time of the initial taxation, and notified the correction of the tax amount, it cannot be deemed that the tax base, tax rate, and basis for calculation of the tax amount were not stated again in the notice, and that the notification method does not constitute unlawful because it cannot be deemed that the above correction method did not harm the fairness of tax administration or disadvantage the taxpayer (see, e.g., Supreme Court Decision 97Nu18479, Feb. 27, 198). Further, since the tax authority found the tax base and amount of tax to be reduced and corrected, it cannot be seen that the remaining tax base and amount of the tax disposition in this case were not corrected.

3. Conclusion

Therefore, the part of the disposition imposing additional tax among the plaintiff's claim of this case is justified, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.