Daejeon District Court 2009Guhap2360 ( October 17, 2010)

early 208 Jeon 2402 (Occ. 30, 2009)

Whether the spouse's inherited property constitutes an inevitable cause for not dividing it;

The circumstance that a criminal trial was pending or an adjudication on division of inherited property was pending between inheritors does not constitute an inevitable cause for not dividing the spouse's inherited property.

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

The part that exceeds 30,585,680,910 won out of total inheritance tax of 32,230,656,765 won on April 1, 2008 against the plaintiffs (the plaintiff is seeking revocation of the disposition imposing inheritance tax as of April 7, 2008 from the claim of July 1, 2010 and the application for change in the cause of the claim, but this seems to be a clerical error in the statement of April 1, 2008, and the plaintiff reduced the claim in the trial).

2. Purport of appeal

The decision of the court of first instance shall be revoked. The defendant's disposition of imposition of KRW 34,645,405,120 on April 1, 2008 against the plaintiffs shall be revoked.

1. Circumstances of the disposition;

A. The plaintiff NewB is the spouse of the deceased KimSG (hereinafter referred to as "the deceased"), and the rest of the plaintiffs are the deceased's children (hereinafter referred to as "the deceased's heirs, such as KimA and Kim JK, together with the deceased's inheritors, who are the plaintiffs and the deceased's children).

B. As the Deceased died on August 27, 2006, on February 26, 2007, KimAA and Kim JK reported inheritance tax (hereinafter “instant inheritance tax return”) with the taxable value of KRW 52,195,00,000, and the voluntary payment tax amount of KRW 21,177,000,000,000.

C. From September 27, 2007 to December 31, 2007, the director of the Daejeon Regional Tax Office conducted an inheritance tax investigation on the deceased’s inherited property and notified the defendant of the result thereof. On April 1, 2008, the defendant issued an inheritance tax disposition (hereinafter referred to as the “disposition of this case”) that determined the taxable value of inherited property as KRW 71,486,648,148, and the tax base as KRW 69,70,173,60 and calculated as the tax base as KRW 36,166,262,650, which the plaintiffs would jointly pay.

D. On July 1, 2008, the plaintiffs filed an appeal with the Tax Tribunal. On March 30, 2009, the Tax Tribunal rendered a decision that the provisional payment amount of KRW 6,038,50,000 of the Daejeon Western bus Public Terminal Co., Ltd. (hereinafter referred to as the "SPS") as the inheritance obligation shall be deducted as the inheritance obligation. Accordingly, on April 16, 2009, the defendant deducted the inheritance obligation of KRW 6,038,50,000 from the inheritance obligation of KRW 64,808,148,148,148, and the tax base shall be KRW 63,808,808,148, the tax base shall be KRW 6308,148,148, and accordingly, the amount of the inheritance tax shall be reduced to KRW 32,230,656,706,706.

E. After that, on October 27, 2009, the Defendant: (a) deemed the deceased’s debts of KRW 1,840,000,00 for loans to the Daejeon Central Enterprise Finance Branch in the name of the deceased on October 27, 2009, during the lawsuit of the first instance court of this case, as the deceased’s debts; (b) deducted the above money from the value of inherited property; (c) considered the above money as loans to the deceased’s Daejeon Bus Co., Ltd.; and (d) added the value of inherited property to the value of inherited property by deeming it as loans to the deceased’s Daejeon Bus Co., Ltd.; and (d) determined that the taxable value of inherited property should be KRW 78,092,231,473; and (e) calculated the deductible value of inherited property at KRW 16,235,036,050; and (e) determined that the tax base

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 and 2, Eul evidence 12 (including each number, if any) and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiffs' principal

1) A) The Deceased owned 576,00 shares of Daejeon Broadcasting Co., Ltd. (hereinafter “SP Broadcasting”), but the Defendant calculated the inheritance tax on the ground that u transferred 6,000 shares of Daejeon Broadcasting Co., Ltd. (hereinafter “PP comprehensive construction”) to KRW 10,000 per share on October 12, 2006, on the ground that there was a transaction that u transferred 6,00 shares of Daejeon Broadcasting Co., Ltd. to KRW 10,000 per share.

나) 그런데 대전방송주식의 양도와 관련하여서는, 주식회사 @@@(이하 '@@@'이라 한다.)이 2006. 5. 16. 오yy에게 대전방송주식 60,000주를 1주당 7,000원에 양도한 거래도 있다.

C) In determining the market price of unlisted stocks, if the transaction value is objectively and objectively deemed unfair, such as a transaction with a person with a special relationship, the transaction value cannot be deemed the market price. In full view of various circumstances, the transaction thatu transferred Daejeon Broadcasting Stocks to P Integrated Construction is deemed objectively unfair.

라) 그리고 구 상속세 및 증여세법(2007. 12. 31. 법률 제8828호로 개정되기 전의 것, 이하 '구 상속세및증여세법'이라 한다.)상 비상장주식의 시가 산정시 상속개시일 전후 6월 내에 거래가 있는 경우 그 거래 당사자의 관계, 거래수량, 거래경위 및 가격결정 과정, 상속개시일부터 매매계약일까지 가격변동 요인의 유무, 주식 발생법인에 대한 순자산가치 및 순손익가액 등을 기초로 산정한 주식가액 등을 종합적으로 고려하여 그 거래가액을 시가로 삼을 수 있는지를 판단하여야 하므로, 상속개시일 전후 6월 내에 있는 위 2개의 거래가액 중 2006. 5. 16.자 @@@이 오yy에게 대전방송주식을 양도한 거래에서의 주식 1주당 가액인 7,000원을 기준으로 대전방송주식의 시가를 계산하여야 하고, 단순히 2006. 10. 12.자 거래가액이 상속개일로부터 한 달 더 가깝다는 이유로 그 거래가액을 시가로 보는 것은 위법하다.

2) A) The Plaintiff NewB filed an application with the Defendant to deduct the actual inherited amount from the taxable value of inherited property, as the spouse of the deceased.

B) However, the Defendant cannot be deemed to fall under an inevitable reason under Article 19(2) of the former Inheritance Tax and Gift Tax Act and Article 17(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”) and even if the instant inheritor’s failure to divide his/her inherited property by the due date of the division of inherited property, the Defendant cannot be deemed to fall under an inevitable reason (2). However, even if the instant inheritor’s failure to file a report on the reason of non-division of inherited property by the due date of the division of inherited property, the Defendant deducted only KRW 50

C) However, the reason that the Plaintiff NewB was unable to divide the inherited property by the time limit for the division of inherited property was killed on August 27, 2006 by the deceased, and the investigation and trial proceedings on murdered by July 2007 were underway, and the Plaintiffs did not have any ability to divide the inherited property by July 24, 2007. On July 24, 2007, KimA had received an oral donation of the deceased’s property, and filed an adjudication on the division of inherited property against the remaining inheritors, and the adjudication was continued. Accordingly, the Plaintiffs could not divide the deceased’s inherited property, and such reason constitutes “a compelling cause” under the former Inheritance Tax and Gift Tax Act and the Enforcement Decree of the Inheritance Tax and Gift Tax Act.

D) In addition, even if the plaintiffs did not submit a report on the reason for non-division of inherited property according to the legal form to the defendant within the time limit for non-division of inherited property, if the head of the competent tax office deems that the reason for non-division can be deemed to have been reported or the reason for non-division could have been known, it should be recognized as having reported the reason for non-division of inherited property. The Red RR, which was in charge of the imposition of inheritance tax of the deceased, was aware of all the facts that the inheritance adjudication is pending among the heirs of this case. Accordingly, this case constitutes a case where the plaintiff can be deemed to have reported the

E) In addition, the Plaintiff NewB received an additional inherited property before the determination of the amount of inheritance tax and submitted to the Defendant a report on the reason of non-division under the former Inheritance Tax and Gift Tax Act. As such, the Plaintiff’s newB should be deemed to have actually succeeded to the additionally divided property, and the spouse’s inheritance deduction should be recognized.

3) If so, the value of the inherited property increased by the Defendant’s computation of the value of the shares of Daejeon Broadcasting is KRW 1,728,00,00 (= KRW 576,00 x (10,00 - KRW 7,00)). The amount of the deduction of spouse’s inheritance is KRW 973,769,124 [Article 1,473,769,124 [Article 5,218,08, 212 - - 3,774,239,08 of inherited property] - The amount of the inheritance tax calculated based on each of the above amounts shall be revoked. Since the inheritance tax calculated based on the above amounts is the total amount of KRW 30,58,680,00,00, the amount of the above disposition exceeds the above amount.

(b) Related statutes;

The entries in the attached Table shall be as follows.

(c) Fact of recognition;

1) The Deceased was a valuable asset in Daejeon. On August 27, 2006, the Deceased was killed to an employee of the Daejeon Terminal operated by the Deceased. On February 12, 2007, the Daejeon District Court sentenced the Daejeon Terminal to imprisonment for life to an employee of the Daejeon Terminal who killed the deceased’s speech. The above employee filed an appeal and appeal, but the appeal and appeal were all dismissed, and the judgment became final and conclusive on July 30, 2007.

2) Of the instant inheritors, on July 24, 2007, KimA filed a judgment on the division of inherited property with the Daejeon District Court’s Family Branch Office 2007Rahap12 against the remaining inheritors, and rendered a judgment on October 23, 2009. However, while KimA filed a complaint with the Daejeon High Court, the instant appeal is pending (No. 2009B7).

3) As of August 27, 2006, the example of trading stocks of Daejeon Broadcasting during the period of not more than 6 months before and after the commencement date of inheritance is as follows (hereinafter referred to as "the transaction falling under the sequence 1 among the following transaction cases", and "the transaction falling under the sequence 2" is limited to "the second transaction in this case").

4) The Red RR, from September 2007 to December 2, 2007, was aware that the instant heir did not reach an agreement on the division of inherited property before investigating the inheritance tax on the deceased. As a staff of the Daejeon Regional Tax Office, there was an adjudication on division of inherited property.

5) On August 2007, Plaintiff Kim Jong-hee filed an application with the Daejeon Regional Tax Office that “Seoul reported inheritance tax to other inheritors.” However, the staff of the Daejeon Regional Tax Office rejected such application.

6) Meanwhile, on March 17, 2008, Plaintiff NewB submitted on March 17, 2008, the “Agreement on Division of Inherited Property” with the content that the real estate located in Daejeon-dong, Daejeon-dong, 219-7 and 132,925 shares of Daejeon-dong shall be divided into the spouse’s inherited property, and submitted a written report on Division of Inherited Property to the Defendant on March 19, 2008.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 6 through 9, 15, 16, 18, Eul evidence Nos. 3, 4, 7, 9, 16 through 19, Gap evidence Nos. 3, 4, 9, 16, and 19 (including each number, if any), the witness Red RR testimony of the first instance court, the result of the party's personal examination of the plaintiff Kim Jong-hee, the purport of the whole

D. Determination

1) Determination as to the assertion that the evaluation of the market price of Daejeon Broadcasting Stocks is illegal

A) According to Article 60(2) of the former Inheritance Tax and Gift Tax Act and Article 49(1)1 and (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the value of the property subject to inheritance is appraised as of the date of commencing the inheritance as of the date of commencing the inheritance, which is the date of commencing the inheritance. In cases of trading the pertinent property within six months before or after the evaluation base date, the transaction value shall be deemed as the market price, and in cases where there are two or more values deemed as the market price within six months before or after the evaluation base date

B) As examined earlier, the Daejeon Broadcasting Stock was traded on two occasions within the period of six months before and after the evaluation base date, and the first transaction of this case was conducted on three months from the evaluation base date and ten days from the evaluation base date, while the second transaction of this case was conducted on the date nearest before and after the evaluation base date was conducted on about 15 days from the evaluation base date. The transaction of this case was conducted on the date nearest before and after the evaluation base date shall be deemed the second transaction of this case. In full view of the relationship between the parties to the transaction of the relevant stocks as indicated in the record, the market price per one stock as of the evaluation base date of the Daejeon Broadcasting Stock, which is the inherited property of this case, shall be deemed to be KRW 10,000, which is the trading value per share of the Daejeon Broadcasting Stock of this case in the second transaction of this case.

C) In light of the following: (a) the value of the transaction, such as the transaction with a specially related person, is excluded from the market value which is the basis for calculating the market value (Article 49(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act); (b) the number of shares traded in the second transaction of this case is merely 1/10 of the number of shares traded in the first transaction of this case; (c) there are no factors for the price fluctuation, such as the rapid improvement of the business performance of Daejeon Broadcasting after the first transaction of this case; and (d) the market value of the shares of Daejeon Broadcasting calculated by supplementary evaluation methods based on the net asset value and net profit and loss value of the Daejeon Broadcasting is 5,058, the transaction of this case is deemed as the transaction that is deemed as the market value of the Daejeon Broadcasting. Thus, the Plaintiff’s assertion that the value of the transaction in the first transaction of this case should be recognized as the market value of the shares of Daejeon Broadcasting. However, the Plaintiff’s assertion that this is insufficient.

D) Therefore, it is lawful to calculate the market value of the Daejeon Broadcasting Stock with the market value of KRW 10,00 per share of the Daejeon Broadcasting Stock owned by the deceased, and determine the taxable value of inherited property on the premise of such calculated market value.

2) Whether the Defendant’s failure to deduct the value of the property actually inherited by Plaintiff NewB from the taxable amount of inheritance taxes is unlawful

A) Article 19 of the former Inheritance Tax and Gift Tax Act provides for the spouse’s inheritance deduction under Article 19 of the same Act, and Paragraph 1 of the same Article provides that the amount actually inherited by the spouse shall be deducted from the taxable amount of inheritance taxes within a certain limit, but such inheritance deduction is not always accepted, and Paragraph 2 provides procedures for receiving the spouse’s inheritance deduction

(1) Where the spouse's inherited property is divided by the deadline for division of inherited property.

Where a spouse of an inheritee divides his/her inherited property by the time limit for division of inherited property and property [the six months from the day following the day of commencing an inheritance], the value of such inherited property shall be deducted from the taxable value of inherited property (Article 19(1) of the former Inheritance Tax and Gift Tax Act).

In order to obtain a spouse's inheritance deduction, the inheritor shall report the division of the inherited property to the head of the tax office having jurisdiction over the place of tax payment by the end of the division of the spouse's inherited property (Article 19(1) and

(2) Where it is impossible for the spouse to divide his/her inherited property by the due date for inevitable reasons.

Where an inherited property is filed by dividing it within six months from the day following the due date for the division of inherited property due to unavoidable reasons, spring for the division of inherited property within the due date for the division of inherited property (Article 19(3) of the former Inheritance Tax

The inevitable reason is that the reason prescribed by the Presidential Decree, such as "where an inheritor, etc. has filed a lawsuit claiming recovery of inheritance against the inherited property" or "where the head of competent tax office recognizes the fact that the spouse cannot divide the inherited property due to unavoidable reasons for which the inheritor is not finally confirmed" (Article 19 (3) of the former Inheritance Tax and Gift Tax Act and Article 17 (2) 1 and 2 of the Enforcement Decree of the Inheritance Tax

In such a case, the heir shall report to the head of the tax office having jurisdiction over the place of tax payment, along with the documents proving the inevitable reasons (Article 19(3) of the former Inheritance Tax and Gift Tax Act, Article 17(3) of the Enforcement Decree of the Inheritance Tax

B) In the instant case, as seen earlier, the commencement date of inheritance was the same as the date of August 27, 2006, and thus, the inheritance tax and one association member's relocation right is the date of February 26, 2007 and the time limit for the division of spouse's inherited property is the date of August 26, 2007. In light of the relevant laws and regulations, in order for the Plaintiffs to obtain a spouse's inheritance deduction on inherited property, the following requirements shall be satisfied:

③ The Plaintiff NewB, by August 26, 2007, received the division of inherited property and reported the fact of division to the Defendant, who is the head of the competent tax office.

④ If it is impossible to divide Plaintiff NewB’s inherited property until August 26, 2007 due to extenuating circumstances, such as “where an inheritor, etc. has filed a lawsuit for recovery of inheritance against inherited property” or “where the head of competent tax office recognizes the fact that the heir could not divide the inherited property due to inevitable reasons, etc., the heir shall file a report to the Defendant, who is the head of competent tax office, along with documents proving the inevitable reasons by February 26, 2007, which is the time limit for filing the inheritance tax base return.” However, in this case, Plaintiff NewB was divided into inherited property by August 26, 2007, and the fact that the heir was divided was not reported to the Defendant. However, it is difficult to interpret that the interpretation of tax laws and regulations would be in accordance with the legal text, barring any special circumstances, and expand or analogical interpretation of inheritance laws and regulations from 207 to 207 to 207, 207 to 207.

Even if the above circumstances are met under the inevitable reasons stipulated in each subparagraph of Article 17(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the plaintiffs filed an application with the Daejeon District Tax Office for the inspection of inheritance tax return, and there is no evidence to acknowledge that the plaintiffs filed a report with the defendant, together with the documents proving the inevitable reason not to divide their inherited property by February 26, 2007, by the employees of the Daejeon District Tax Office. As seen earlier, Red RR, who were the employees of the Daejeon District Tax Office, knew that the inheritance was pending before September 2007, or that the plaintiffs filed a report on inheritance tax with the Daejeon District Tax Office around August 2007, which stated that the plaintiffs filed a request for inspection of inheritance tax return, but the employees in charge of the Daejeon District Tax Office rejected such request cannot be deemed to be the same as submitting a report with respect to the reasons that the plaintiffs could not divide their inherited property to the defendant.

3) Sub-decisions

Therefore, the disposition of the country is a proper law.

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed because they are without merit, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.