Seoul High-2014-0496 ( December 17, 2014)

Whether the obligation of joint and several sureties or the obligation of real guarantee to be borne by the decedent for a third party falls under the grounds for subsequent request for correction

Even if the principal debtor was not in an insolvent at the time of commencement of inheritance, if the inheritor’s subrogation for the debt and the principal debtor’s recovery of the amount of indemnity became impossible due to the insolvency of the principal debtor, this constitutes a ground for ex post request for correction under Article 45-2(2) of the Framework Act on National Taxes, but the Plaintiff does not fall under such ground.

Request for correction, etc. under Article 45-2 of the Framework Act

2015Guhap5570 Revocation of Disposition of Refusal to correct inheritance tax

AA, BB

○ Head of tax office

November 26, 2015

January 14, 2016

1. The plaintiff AA's action shall be dismissed.

2. The plaintiff BB's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection of correction of KRW 0,000,000,000, which was made against the plaintiffs on June 24, 2014, shall be revoked.

1. Details of the disposition;

A. The Plaintiffs are part of the co-inheritors of the deceased non-party deceased on July 12, 2010 (hereinafter “the decedent”).

B. On January 21, 201, the Plaintiffs reported and paid KRW 0,000,000 of inheritance tax, and on June 27, 2012, the Defendant issued a disposition to increase or decrease the amount of KRW 0,000,000 of inheritance tax to the Plaintiffs.

C. On December 18, 2013 and January 29, 2014, the Plaintiffs filed an application for rectification of inheritance tax with the Defendant on December 18, 2013 and on January 29, 2014, claimed that “the decedent guaranteed the obligation of KRW 0 billion in total for Nonparty ○○○○ Incorporated Company (hereinafter “○○○○○”) before the commencement of the inheritance, and the Plaintiffs’ subrogation for the impossibility of repayment through an agreement between the heirs, etc. after the commencement of the inheritance, the Plaintiffs claimed that “the obligation of KRW 00 billion in total should be deducted from the value of inherited property.”

D. On June 24, 2014, the Defendant failed to prove whether ○○○○, the primary debtor as of the commencement date of inheritance, was impossible to repay, and the agreement among inheritors does not constitute a subsequent cause for filing a claim for rectification (hereinafter “instant disposition”), and the said written disposition was served on the Plaintiffs on June 27, 2014.

E. Plaintiff BB was dissatisfied with the instant disposition and filed a request for review by the Board of Audit and Inspection on July 8, 2014, but was dismissed on December 17, 2014, and Plaintiff AB filed the instant lawsuit on April 3, 2015 without going through the aforementioned procedure.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 and 2, and the whole pleadings

chapter 6

2. Whether Plaintiff AA’s action is legitimate

A. Relevant legal principles

Article 18 (1) of the Administrative Litigation Act provides that "a revocation lawsuit may be instituted without going through an administrative appeal against the relevant disposition under Acts and subordinate statutes: Provided, That this shall not apply where any other Act provides that a revocation lawsuit may not be instituted without going through an adjudication on an administrative appeal against the relevant disposition." Article 20 (1) of the Administrative Litigation Act provides that "a revocation lawsuit shall be instituted within 90 days from the date on which the existence of the disposition, etc. is known: Provided, That where the provisions of the proviso of Article 18 (1) and other claims for administrative appeal may be made, or where the administrative agency has falsely notified that a request for administrative appeal may be made, the period from the date on which the certified copy of the written adjudication is served

In addition, Article 56 (2) of the Framework Act on National Taxes provides that "any administrative litigation against any illegal disposition prescribed in Article 55 shall not be filed without going through a request for examination or adjudgment under this Act and a decision thereon, notwithstanding the main sentence of Article 18 (1), Article 18 (2) and (3) of the Administrative Litigation Act," and the main sentence of Article 56 (3) of the same Act provides that " Notwithstanding Article 20 of the Administrative Litigation Act, any administrative litigation under paragraph (2) shall be filed within 90 days from the date the decision on

Where two or more dispositions for the same purpose in tax administration were taken in the course of a phased and developmental process and are related to each other, or in the course of a tax litigation, the tax authority changed the taxation disposition, which is the object of which, and the reason for illegality is common, or where several persons are jointly liable for the same obligation through the same disposition, one of the taxpayers who was either subject to a prior trial procedure or subject to the same disposition has been given an opportunity for the National Tax Service and the Tax Tribunal to re-determine the basic facts and legal issues, such as the time when the previous trial procedure was duly conducted, and the taxpayer seems to be harsh to have been subject to the prior trial procedure, and thus, the taxpayer may file an administrative litigation seeking the revocation of the taxation disposition even without going through the prior trial procedure (see Supreme Court Decision 2012Du20618, Dec. 11, 2014).

However, the main text of Article 56(3) of the Framework Act on National Taxes excludes the application of Article 20 of the Administrative Litigation Act pursuant to Article 56(2) of the Framework Act on National Taxes that excludes the application of the main sentence of Article 18(1) of the Administrative Litigation Act from the application of the main sentence of Article 18(1) of the Framework Act on National Taxes and that an administrative litigation against an unlawful disposition may not be instituted without going through the prior trial procedure under the Framework Act on National Taxes. Thus, in a case where a taxpayer can file a lawsuit seeking revocation of a taxation without going through the prior trial procedure, barring any special circumstance, a revocation lawsuit shall be instituted within 90 days from the date on which he/she becomes aware of the disposition, etc. in accordance with Article 20(1) of the Administrative Litigation Act. The same applies where

B. In the instant case

ex officio, the Defendant rendered the instant disposition against the Plaintiffs on June 24, 2014, and Plaintiff A’s service of the instant disposition on June 27, 2014, but filed the instant lawsuit on April 3, 2015, as seen earlier. Therefore, the instant lawsuit was filed after 90 days from the date on which it became aware of the disposition, and thus, is unlawful.

3. Determination on Plaintiff BB’s claim

A. Plaintiff BB’s assertion

After the commencement of inheritance, as the finance of ○○○○○, the primary debtor, has rapidly aggravated, the plaintiffs who succeeded to the status of ○○○○○○○, a principal debtor, subrogated to the obligation of the inheritee (or are expected to pay by subrogation) as follows. Since the exercise of the right to indemnity against the above company is in de facto impossible (the occurrence of a cause for filing an application for ex post facto correction), each of the following obligations

First, on July 5, 2011, the creditor bank filed a voluntary auction on the ○○○-dong land, etc., which is the location of the ○○○○○○○ headquarters, among inherited property. On October 25, 2011, the inheritor agreed to sell the land, etc., which is another inherited property, around October 25, 201, and subrogated for the debt of KRW 0,000,000,000, which is another inherited property.

Second, on October 31, 2012, the creditor ○ Energy Co., Ltd. (hereinafter referred to as ○○ Energy Co., Ltd.) applied for voluntary auction on the above ○○ Dong-dong 3-○○○ land on October 31, 2012 to pay for the debt of KRW 0,000,000 by subrogation.

Third, on March 31, 2011, the inherited property obtained new loans as collateral such as ○○○-dong 21-○○-dong 21-○○-dong, Seoul, and subrogated for KRW 000,000 for the debts to Nonparty Kim ○-○, a mortgagee of the above real estate.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Relevant legal principles

The value of inherited property refers to an obligation of which it is deemed certain for an ancestor to pay with a final and conclusive obligation by an ancestor at the time of commencement of the inheritance. Thus, in cases where an ancestor bears a joint and several liability for a third party or is liable for a surety's property as a surety at the time of commencement of the inheritance, the principal obligor is in an insolvent condition, and thus, if it is deemed that the obligor is not able to pay with a debt even if the principal obligor exercises the right to demand reimbursement against the principal obligor, the amount of debt can be deducted from the value of inherited property. In such cases, in general, if the principal obligor is not in an unsound state at the time of the commencement of the inheritance, it is not possible for the principal obligor to receive a loan differently because the status of excess has continued for a considerable period of time due to bankruptcy, composition, company reorganization, or compulsory execution, or execution of punishment, it is not possible for the principal obligor to receive a loan, and on the other hand, such reason has an exceptional effect on the taxable value of inherited property, and thus, it is reasonable to 904.24.24.

On the other hand, although the decedent was liable for joint and several liability for a third party, the tax authority imposed inheritance tax without deducting the amount of debt from the value of inherited property on the ground that the obligor is not certain because the obligor is not in an insolvent condition at the time of commencement of the inheritance, yet the obligor was not yet due at the time of commencement of the inheritance, but the obligor was ultimately unable to repay the debt. However, in the situation where the obligee cannot exercise the prior right of reimbursement due to the obligor’s insolvency before the due date, the obligee was issued a favorable judgment and the judgment became final and conclusive upon the heir’s winning a civil lawsuit seeking the performance of the obligor’s joint and several liability for the obligor or other joint and several liability holders, and the obligor’s joint and several liability obligation under the above final judgment in favor of the heir is not likely to be repaid even if the heir actually exercises the right of reimbursement against the obligor or other joint and several liability, unlike at the time of imposition of inheritance tax, and therefore, the confirmation of the obligor’s joint and several liability under the above judgment constitutes grounds for correction under Article 2130-14(1).2)

2) In the instant case:

In light of the above legal principles, even if the principal debtor was not in an insolvent condition at the time of the commencement of the inheritance, and thus the amount of the debt was not deducted from the value of inherited property at the time of the commencement of the inheritance, if it became impossible for the principal debtor to recover the amount of the indemnity at the time of the commencement of the inheritance after the heir's payment by subrogation of the debt, the amount of the indemnity cannot be recovered due to the insolvency condition of the principal debtor at the time of the impossibility of exercising the right to indemnity against the principal debtor by subrogation, it constitutes a ground for ex post request for correction under Article 45-2 (2) 5 of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015) and Article 25-2 (4) of the Enforcement Decree of the Framework Act on National Taxes. It is reasonable to view

However, it is insufficient to recognize that ○○○○, the primary debtor, was insolvent at the time of subrogation as seen earlier (on March 31, 201 and October 25, 2011), solely with the descriptions of subparagraph 3-1 through 4 of the evidence No. 3-4, it is insufficient to recognize that ○○○○, the primary debtor, had been insolvent (i.e., the de facto obligation for ○○ energy is not yet paid by subrogation). Rather, according to the statement of evidence No. 2-1, the net asset as of July 12, 2010 stated on the statement of financial position of ○○○○○○, the net asset as of July 12, 2010, is equivalent to KRW 00,000,000 among the obligations of the inheritee recognized by the Defendant, and even if the Plaintiff’s subrogation at the time of exercising the right to indemnity other property (including set-off) for the purpose of normalization of the said company, it cannot be ruled out that it could have been postponed.

Therefore, the plaintiff BB's assertion is without merit.

4. Conclusion

Therefore, the plaintiff AA's lawsuit is dismissed as it is illegal, and the plaintiff BB's claim is without merit, and it is dismissed as per Disposition.