Plaintiff (Law Firm Jinviel, Attorneys Yoon Young-young et al., Counsel for plaintiff-appellant)

The Director of Gangnam District Office

December 24, 2013

Seoul Administrative Court Decision 2012Guhap29233 decided April 12, 2013

1.The judgment of the first instance shall be modified as follows:

All of the plaintiff's lawsuits of this case are dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

In the first place, the defendant's disposition of imposing inheritance tax on the plaintiff on July 6, 201 shall be revoked on April 5, 2009.

1 Preliminaryly, it is confirmed that the inheritance tax that the Defendant jointly and severally liable to pay to the Plaintiff on April 5, 2009 against the Plaintiff on July 6, 201 does not exist in excess of KRW 392,472,672.

Preliminaryly, the part which exceeds KRW 392,472,672 of the inheritance tax imposition disposition in accordance with the joint and several tax liability of April 5, 2009 against the Plaintiff on July 6, 2011 is revoked.

【Plaintiff changed the claim at the trial as above】

[389,313,076 Won 39,313,076 stated in the application for amendment of the purport of the claim on December 6, 2013 is a clerical error in KRW 392,472,672]

1. Inheritance tax;

The following facts are either disputed between the parties, or acknowledged by considering the whole purport of the arguments in the items in Gap evidence 1, Gap evidence 2, Gap evidence 3, 5, and Eul evidence 1.

[1]

○○ Nonparty 1 died on April 5, 2009, and his co-inheritors were six persons, including Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6, who were the wife.

○ 6 co-inheritors, including the Plaintiff, did not report the taxable value and tax base of inherited property.

In 2001 and 2008, the Defendant investigated that the transfer price, etc. of real estate sold by Nonparty 1 was added to the taxable amount of inheritance taxes, and determined the inheritance tax base and tax amount.

[2]

On July 6, 2011, the Defendant served on the Plaintiff a list of the inheritance tax and joint and several taxpayers to be paid by the “tax payment notice” and “heir” to notify the inheritance tax base and tax amount determined as above.

In the above tax notice (hereinafter “instant tax notice”), the Defendant stated that the tax base of △△△ was KRW 3,327,459,902, KRW 50% for △△△, KRW 1,203,729,852 for △△△△△, KRW 285,030,946 for △△△△△△, KRW 458,356,137 for △△△△△△△, and KRW 1,030,404,760 for △△△△△△△△△△△△, and KRW 458,356,137 for

In addition, the defendant stated in the tax payment notice of this case "one of six joint and several taxpayers. One of all joint and several taxpayers is the time limit for payment."

○○ The Defendant indicated that the sum of the amount of tax payable to each inheritor and the list of persons jointly and severally liable for tax payment by the heir (hereinafter “the group of persons jointly and severally liable for tax payment”) is KRW 1,030,404,761, and entered the name, resident registration number, relationship with the decedent, inheritance share, and tax amount of six co-inheritors, including the Plaintiff at △△△, in the above list of persons jointly and severally liable for tax payment.

Pursuant to ○○, the Defendant stated that the Plaintiff’s inheritance shares were 28.606% of the Plaintiff’s inheritance shares and the amount of tax payable by the Plaintiff for △△△△ was KRW 294,762,268.

2. The plaintiff's assertion

The Defendant served the instant tax notice on the Plaintiff, and served the notice of collection of KRW 1,030,404,760 as stated therein.

However, according to the death of Nonparty 1, the total amount of assets acquired by the Plaintiff’s inheritance is KRW 939,123,88, KRW 35,146,218, and KRW 729,00,00, which is included in KRW 939,123,888, and KRW 729,00,000, which is included in KRW 939,123,888, and the inheritance tax to be paid by the Plaintiff to the Plaintiff of △△△△ was KRW 294,762,268.

Therefore, the Plaintiff’s joint and several payment obligation is limited to KRW 392,472,672 (i.e., KRW 939,123,88 - KRW 35,146,218 - KRW 216,742,730 - KRW 294,762,268). As such, the aforementioned notice of collection of KRW 1,030,404,760 exceeds the Plaintiff’s joint and several payment obligation, and is unlawful.

Accordingly, around △△△△, seeking revocation of the illegal collection notice as above, and △△△△△△, seeking confirmation of the absence of the part exceeding KRW 392,472,672, which is the Plaintiff’s joint and several liability limit among the illegal collection notice, and seek revocation of the part exceeding KRW 392,472,672, which is the Plaintiff’s joint and several liability limit among the illegal collection notice.

3. Determination

(a) Joint payment obligations;

(1) Article 3(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 1, Jan. 1, 2010; hereinafter the same shall apply) provides that an inheritor is obligated to pay inheritance tax according to the ratio calculated, as prescribed by Presidential Decree, based on the property received or to be received by each person among inherited property, with respect to inheritance tax imposed by this Act.

On the other hand, Article 3 (4) of the Inheritance and Gift Tax Act provides that the inheritance tax under paragraph (1) shall be jointly and severally liable to pay within the limit of the property each inheritor received or is to receive.

(2) According to the above provisions, each co-inheritors is obliged to pay the inheritance tax according to the ratio of possession of the property he/she received or to receive among the total amount of the inheritance tax calculated by setting the total amount of the inherited property of the inheritee as the taxable value, as well as to pay the inheritance tax of other co-inheritors within the limit of the property he/she received

The above joint payment obligation of co-inheritors is not established by the requirement that other co-inheritors not pay the inheritance tax to be paid by each of them (Supreme Court Decision 93Nu10316 Decided December 21, 1993). Such joint payment obligation of co-inheritors is not established by the requirement that other co-inheritors do not pay the inheritance tax to be paid by each of them (Supreme Court Decision 93Nu10316 Decided December 21, 1993). Such joint payment obligation of other co-inheritors naturally becomes final and conclusive by the taxation of each of them, and thus, the tax authority may commence the collection procedure against the person liable for joint payment without a separate final and conclusive procedure (Supreme Court Decision 98Du9530 Decided November 27,

(b) Determination and determination of tax bases and taxes;

(1) Article 76(1) of the Inheritance Tax and Gift Tax Act provides that the head of a tax office shall investigate and determine the tax base and tax amount in case the heir liable to pay the inheritance tax fails to report the taxable value and tax base of the inheritance tax

Article 77 of the Inheritance and Gift Tax Act provides that the head of △△△ shall notify the heir of the tax base and tax amount determined by Article 76 under the conditions as prescribed by the Presidential Decree. In case there are two or more heirs, only one of them may be notified under the conditions as prescribed by the Presidential Decree, and the effect of the notification shall extend to all of the inheritors.

Article 79(1) of the Enforcement Decree of the Inheritance and Gift Tax Act (amended by Presidential Decree No. 2010, Feb. 18, 2010; hereinafter the same) provides that when notice of tax base and tax amount is given pursuant to Article 77 of the Inheritance and Gift Tax Act, the head of a tax office shall specify the tax base and tax calculation basis in the notice

(2) Since the duty of joint and several payment by co-inheritors is not established by the requirement that other co-inheritors not pay the inheritance tax to be paid by each person, the duty of tax payment having the effect of specifically determining each person’s duty of tax payment to co-inheritors should be classified and specified separately for each co-inheritors, but the duty of tax payment having the effect of claiming the performance of the finalized tax obligation to each co-inheritors may be imposed on the whole inheritance having the duty of joint and several payment (Supreme Court Decision 93Nu10316 delivered on December 21, 1993).

If the tax authority written the total amount of tax payable in a tax payment notice, the tax base, tax rate, and deductible amount of tax for each co-inheritors, as well as the amount of tax for each co-inheritors’s possession of each co-inheritors’ inherited property, and the amount of tax for each co-inheritors’s possession of inherited property calculated according to their respective ratios, and written a written notice of tax for each co-inheritors’s possession of inherited property, attached to the tax payment notice, and then delivered it to the co-inheritors indicated as a taxpayer, it is reasonable to deem that the total amount of tax payable in the tax payment notice was indicated as the amount of tax for the co-inheritors’s joint and several obligation to pay in accordance with the Inheritance Tax and Gift Tax Act, and that the amount of tax payable by each co-inheritors was individually imposed and collected in accordance with the detailed notice of tax for each co-inheritors’s joint and several co-inheritors’s tax payment notice attached to the tax payment notice (Supreme Court Decision 93Nu10316 delivered on December 21,

C. The instant tax payment notice and the joint payment obligor list

(1) According to the facts found earlier, six co-inheritors, including the Plaintiff, did not file a return on the taxable value and tax base of inherited property. On July 6, 201, the Defendant served on the Plaintiff the instant tax payment notice and the instant joint obligor order to determine and notify the tax base and tax amount. On July 6, 2011, the instant tax payment notice entered the total tax amount to be paid, the tax base, tax rate and deductible tax amount, etc. on the instant tax payment notice, and the Plaintiff entered the Plaintiff as one of six co-inheritors, and the instant joint obligor order entered the amount of tax to be paid by each of the aforementioned co-inheritors according to the inheritance shares.

Therefore, the Defendant’s entry of the total amount of tax payable by the instant tax payment notice is indicated as the amount of tax collection notice, where six co-inheritors, including the Plaintiff, jointly and severally liable to pay the total amount of tax, and the amount of tax to be paid by the said six co-inheritors are individually imposed and collected by the joint and several payment obligor list

Therefore, by delivering the instant tax payment notice and the instant tax payment order to the Plaintiff, the Defendant, including the Plaintiff, notified the collection of KRW 1,030,404,760 of the total amount of tax that six co-inheritors, including the Plaintiff, jointly and severally liable to pay, and imposed and collected KRW 294,762,268 of the amount of tax to be paid by the Plaintiff.

(2) Meanwhile, according to the foregoing, the obligation of joint and several payment by co-inheritors is not established by the requirement that other co-inheritors not pay the inheritance tax to be paid by each of them, and such obligation of joint and several payment is naturally finalized by the provisions of the Inheritance Tax and Gift Tax Act, and the tax authority can immediately commence the collection procedure against each co-inheritors without any separate final and conclusive procedure. Moreover, the notice of collection that each co-inheritors has the effect of claiming the performance of the tax obligation fixed to be paid by each co-inheritors can be considered as the whole inheritance tax with the joint and several payment obligation.

Therefore, even if the Defendant served the Plaintiff with the instant tax payment notice and the instant tax payment order, the Defendant did not take any measure regarding the Plaintiff’s joint payment limit of inheritance tax, in addition to the tax payment notice in KRW 1,030,404,760 as seen earlier and the tax payment notice in KRW 294,762,268.

(3) As seen earlier, the Plaintiff sent the instant tax notice to the Plaintiff, and issued a notice of collection KRW 1,030,40,404,760 as stated therein, and asserted that such notice of collection exceeds KRW 392,472,672, which is the limit of the Plaintiff’s joint and several liability for payment, and sought revocation of the said notice of collection, and the Plaintiff primarily sought revocation of the said notice of collection and sought revocation of the part, which exceeds KRW 392,472,672.

According to the above assertion and claim, the plaintiff's lawsuit of this case does not dispute about the total tax amount of KRW 1,030,404,760, which is jointly and severally liable by six co-inheritors, including the plaintiff, and the part exceeding KRW 392,472,672, even though the limit of the plaintiff's joint and several payment obligation exceeds KRW 392,472,672, the defendant's disposition that is included in the limit of the plaintiff's joint and several payment obligation is unlawful, and therefore the cancellation or non-existence of such disposition is sought.

Thus, the plaintiff's lawsuit of this case was filed by the defendant, although the defendant did not make a separate disposition as to the limit of the plaintiff's joint and several liability, it is deemed that the part exceeding KRW 392,472,672 among the 1,030,404,760 was also included in the limit of the plaintiff's joint and several liability, and thus, it is sought to confirm the cancellation or non-existence of such disposition. Thus, this lawsuit

(4) Meanwhile, the Defendant stated that the Plaintiff’s above assertion is KRW 609,215,402, which is naturally determined by the provisions of the Inheritance and Gift Tax Act. As seen earlier, the Defendant expressed the limit of the duty of joint and several payment without any separate procedure, and the Defendant did not make a separate disposition with the Plaintiff’s limit of the duty of joint and several payment as KRW 609,215,402.

In addition, the obligation of joint and several payment is jointly and severally liable to pay within the limit of the property received or to be received by each inheritor, and the limit of the obligation of joint and several payment is naturally fixed by the provisions of the Inheritance Tax and Gift Tax Act. Therefore, when another co-inheritors' obligation of joint and several payment is fulfilled, the scope of the obligation of joint and several payment can

Therefore, if the Defendant considers the Plaintiff’s limit of joint payment as KRW 609,215,402 and proceeds from the procedure of demanding the Plaintiff to collect taxes, seizure, etc. on this premise, the Plaintiff’s claim that his limit of joint payment was KRW 392,472,672 at the stage of the collection procedure or that the Plaintiff’s obligation to pay taxes was fulfilled by other co-inheritors, is a separate dispute over the collection disposition. However, it cannot be said that the Defendant issued the instant tax payment notice and the instant joint payment obligor’s name group to the Plaintiff and issued the instant tax payment notice and the instant disposition that exceeds KRW 392,472,672 at the time of the Plaintiff’s joint payment, and thus, it is legitimate to seek revocation or confirmation of absence of such disposition.

4. Conclusion

Therefore, the plaintiff's lawsuit of this case relating to the claim that has been changed in the trial court is dismissed, and it is so decided as per Disposition by the court of first instance following the amendment of the claim in the trial court.

Judicial Enforcement Decree of Judges (Presiding Judge)