Daejeon District Court 2013Gudan10073 (Law No. 26, 2013)

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.

(A) If the property is solely inherited through a division agreement, it is reasonable to view that the sole heir succeeds to all the obligation of the inheritee to pay the capital gains tax. Therefore, the disposition based on the premise is legitimate. However, the notice of imposition of additional tax is defective due to defects such as omitting the matters required by the relevant statutes. Therefore, the disposition imposing additional tax should be revoked

2013Nu3106 Revocation of Disposition of Imposing capital gains tax

United Kingdom A

Daejeon Head of the District Tax Office

Daejeon District Court Decision 2013Gudan10073 Decided July 26, 2013

December 5, 2013

December 26, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

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

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The part of the disposition by the defendant against the plaintiff on April 2, 2012, which exceeds the OOO (including additional tax) of the capital gains tax belonging to the plaintiff on April 2, 201, shall be revoked.

1. Details of the disposition;

A. On November 26, 2001, this BB, the Plaintiff’s husband, transferred the land substitution of 1,014 square meters (the land transferred in this case was determined on June 19, 2002 by a land readjustment project) of OO-dong 117-2, O-dong 1,014 square meters to O-dong 1,014 square meters (the land substitution was determined on June 19, 2002 by the land readjustment project; hereinafter “transfer land in this case”) to OOO, and reported and paid the transfer income tax with the transfer value as OOO. However, the Defendant investigated the actual transaction price for the sale of the land transferred in this case and notified the transfer value as OOO as OO.

“B. On February 12, 2005, the Plaintiff and its children (DD, EE, EF, EF, EG, EH) were co-inheritorss of the networkB, on January 13, 2012, the Plaintiff filed a lawsuit claiming payment of money against the Defendant (Seoul District Court, Daejeon District Court, 2011, 200, 21,719 square meters of OO-Gu OO-dong, OO-dong, OO33-1 forest (hereinafter “instant inherited land”). The remaining co-inheritors, except the Plaintiff, did not receive inherited property. On January 26, 2012, 200, the Plaintiff filed a separate registration of inheritance on the instant inherited land.” (C) On January 26, 2011, the Plaintiff filed a lawsuit claiming payment of money against the Defendant, which arranged the sale and purchase of the instant land transferred in accordance with the sales contract of the instant land, and the Daejeon District Court notified the Plaintiff of the purchase price as the sales contract in the instant case.

D. On April 2, 2012, the Defendant: (a) investigated the buyer, etc., and revised the transfer value of the instant transferred land as OOO(OOOO + substitute substitute settlement money + OOOB); and (b) calculated the transfer income tax for 2001 as OO won; and (c) on April 2, 2012, the Plaintiff deemed that the inherited property of the networkB was solely inherited by agreement division, and accordingly, 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 filed an objection with the Director of the Daejeon Regional Tax Office, but the Director of the Daejeon Regional Tax Office dismissed the Plaintiff’s objection on July 19, 2012. While the procedure of filing the objection is underway, the Defendant found that there was an error in applying the acquisition value calculation and the time of attribution of the liquidation money for replotting when determining and imposing transfer income tax as above. Accordingly, the Defendant issued a decision of correction to reduce the amount of OOO won from the disposition of imposition of transfer income tax against the Plaintiff, as indicated in the “reduction Correction of the Particulars of Calculation of Transfer Income Tax” column for the said disposition of imposition of transfer income tax against the Plaintiff, and on October 5, 2012.

It notified that OOOO(OOO - OOO(2) should be paid (the first instance court revoked the portion of additional tax imposed on April 2, 2012, and only the plaintiff appealed the portion of additional tax imposed on the transfer of OO(200,000,000,000).

[Grounds for Recognition] Unsatisfy, Gap evidence 1 to 9, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

(1) In addition to the instant inherited land, the instant disposition was unlawful on the premise that the Plaintiff was inherited the deceasedB’s property solely on the ground that the Plaintiff and co-inheritors, including the Plaintiff, jointly inherited the said claims according to their statutory shares of inheritance.

(2) If there are more than one inheritor, even if one of the heirs actually succeeded to the property of the inheritee, the liability to pay taxes of the inheritee succeeded to by that inheritor is limited to the amount calculated according to the inherited portion pursuant to Articles 1009, 1010 and 1012 of the Civil Act, and thus, the Plaintiff is deemed to succeed to the net BB’s liability to pay taxes only within the scope of statutory inheritance (3/13). However, the instant disposition based on the premise that the Plaintiff succeeded to all the liability to pay taxes of the deceasedB is unlawful.

(3) From 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 of jointly and severally paying with other co-inheritors. However, the instant disposition is still unlawful on the ground that the tax notice on the instant disposition does not stipulate at all the grounds for taxation on other co-inheritors.

(4) On October 5, 2012, the Defendant issued a tax payment notice stating the remaining amount of OOOO directors after a decision to reduce the amount of OOO directors, among capital gains tax initially imposed on the Plaintiff on the Plaintiff on October 5, 2012. The said tax payment notice alone does not distinguish whether capital gains tax is principal tax or additional tax, and the grounds for calculation cannot be known at all, so the instant disposition violates the lawful method of tax payment notice.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Determination

(1) The netB’s inherited property

In addition to the land inherited in this case, I would like to consider whether each claim for loans to the HongJ and the L has been made to the networkB.

First of all, as evidence that the deceasedB lent OB to the HongJ, the fact-finding certificate (Evidence No. 13-1 of the above OB), the plaintiff, the ICK, and the witness of the trial court (Evidence No. 17 of the A) as well as the testimony of the ICK. However, there is no objective evidence to support the fact that the money of the deceasedB was transferred to the HongJ through ICK, or that the networkB was transferred to the HongJ, ② it is difficult to recognize that the above OB was leased to the above OB by the plaintiff in view of the fact-finding certificate (Evidence No. 13-1 of the above OB), ③ it is hard to recognize that the above OB was leased to the 13rd of the agreement, ③ it is hard to recognize that the time limit of extinctive prescription of the claim No. 17 of the plaintiff and the POJ is not sufficient to recognize that the above OB had already been made out of the 13rd of July 2003.

Next, there is no evidence to acknowledge that the netB has lent OOO to the LL by fraud.

In addition, even if the LJ or K, and LB have claims for loans to LB to LB, other co-inheritorss agreed not to inherit inherited property, in light of the contents of the letter of agreement on division of inherited property (Evidence A8) prepared by the heir of LB, including the Plaintiff, since other co-inheritors agreed not to inherit inherited property, it is reasonable to deem that each of the above claims was inherited by the Plaintiff.

Therefore, this part of the Plaintiff’s assertion is without merit under the premise that the heir jointly succeeded to the claim for loans to the networkB, the Hong J or KK, and the LL.

(2) Succession of tax liability

Where inheritance commences, the inheritor shall succeed his liability to pay taxes by way of succession, and where there exist two or more inheritors, each inheritor shall be jointly and severally liable to pay the national taxes, etc. calculated in proportion to their shares of inheritance under Articles 1009, 1010, 1012 and 1013 of the Civil Act within the limit of the property acquired by inheritance (Article 24(1) and (2) of the Framework Act on National Taxes).

In this case, the plaintiff inherited the inherited land of this case between the deceasedB's other co-inheritors, and the other co-inheritors completed the agreement on division of the inherited property with the intention to not inherit the inherited property. As seen earlier, it is reasonable to deem that the plaintiff succeeded to all tax liability due to the disposition of this case, unless there is any evidence to acknowledge that there was any other inherited property than the inherited property of this case.

Therefore, this part of the Plaintiff’s assertion that co-inheritors, including the Plaintiff, jointly succeed to the networkB’s tax liability according to the statutory share of inheritance is without merit.

(3) Illegal act of tax payment notice to co-inheritors

As seen earlier, the instant disposition is based on the premise that the Plaintiff succeeded to the net BB’s duty to pay taxes. Thus, the Plaintiff’s assertion on this premise that the Plaintiff and other co-inheritors have a joint and several tax liability is without merit.

(4) Illegality in the method of duty payment notice following a decision of reduction correction

If Gap evidence 1-1 and 2 are added to the purport of the whole pleadings, the defendant has notified the notice of imposition of capital gains tax by stating both the tax base, tax rate, and calculated tax amount in the notice of imposition of capital gains tax at the time of the disposition of this case, and after correction, a tax notice stating only the remaining tax amount has been served.

However, even if the tax authority issued a tax notice stating only the amount of reduced tax in the notice of the determination of reduction of capital gains tax, as long as the tax authority imposed a tax notice by issuing a tax notice stating necessary matters, such as the basis for calculating the amount of tax at the time of initial taxation, etc., the tax authority’s notification of the determination of reduction cannot be deemed as either impairing fairness in tax administration or causing disadvantages to taxpayers (see, e.g., Supreme Court Decision 97Nu18479, Feb. 27, 1998) and thus, the method of notification cannot be deemed unlawful (see, e.g., Supreme Court Decision 97Nu18479, Feb. 27, 1998). In addition, where the tax authority issued a correction after finding that there was an error in the tax base and amount of tax determined at the time of initial taxation, it was nothing more than revoking part of the tax base and amount of tax determined at the time of the tax assessment, and thus, this disposition only remains within the scope of the tax assessment and becomes the object of litigation.

In light of the above legal principles, as seen earlier, the Plaintiff filed an objection against the instant disposition and received a tax payment notice following the correction of reduction after receiving the decision of dismissal. As such, the Plaintiff appears to have been aware of the developments leading up to the correction of reduction in full view of the following: (a) the Plaintiff’s notification of the amount of tax corrected by reduction was not sufficient to deem the instant disposition to have violated the lawful method of the tax payment notice, solely on the basis that the Defendant’s notification of the amount of tax corrected by reduction was made.

Therefore, the Plaintiff’s assertion that the instant disposition was in violation of the lawful method of duty payment notice is without merit.

(5) Sub-committee

Therefore, the disposition of this case is legitimate, and all of the plaintiff's arguments are without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.