Daegu District Court 2014Guhap412, 2017.18

The early 2013Gu 3594

The plaintiff's assertion that a retroactive effect under Article 1015 of the Civil Act is recognized in the "consultation on Division of Inherited Property" or that it violates the principle of substantial taxation is without merit.

It cannot be deemed that the division agreement of this case, which takes the proceeds from the sale of the trust land of this case as the inherited property as the object of division, cannot be deemed as the "consultation on the division of inherited property" under Article 1013 of the Civil Act, and there is no unreasonable infringement of property rights such as the plaintiff and o. Therefore, the plaintiff's assertion that the retroactive effect under Article 1015 of the Civil Act is recognized in the division agreement

Article 1013 of the Civil Act

2014Nu5706 Revocation of capital gains tax revision or rejection

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Head of the Tax Office

National Rotations

November 21, 2014

January 9, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's rejection disposition against the plaintiff on July 2, 2013 against the claim for refund of capital gains tax to the defendant shall be revoked.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, the court's application of Article 8 (2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act is cited.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) On October 29, 2009, after the inheritance commenced due to the death of the decedent AA, the Plaintiff and BB, etc., submitted to the Defendant a report on inheritance tax return and an agency of voluntary payment, and completed the agreement on division of inherited property at the time of paying inheritance tax, and completed the agreement on division of inherited property. On June 4, 2013, the written agreement on division in this case was prepared in a form to confirm the agreement on division of inherited property for the convenience of applying for the refund of capital gains tax.

2) Even if the agreement on division of inherited property cannot be deemed to have been reached at the time of commencement of inheritance, the proceeds from sale of the instant trust land shall also be deemed to constitute inherited property subject to division. Thus, the instant agreement on division is retroactively effective as an agreement on division of inherited property pursuant to Article 1013 of the Civil Act when inheritance commences pursuant to Article 1015

3) In other words, the Plaintiff, the heir of AA, and BB, etc. were to conduct the instant partition consultation for the purpose of enabling the Plaintiff to acquire the proceeds from the instant trust land by alone, but the Defendant violated the substance over form doctrine by placing the instant disposition, which neglected such economic substance, on the formal phrase of the instant partition agreement.

4) Therefore, the instant trust land was owned solely by the Plaintiff based on the agreement on the division of inherited property by co-inheritors at the time of commencing the inheritance or on the retroactive effect of the agreement on the division of inherited property by co-inheritors at the time of commencing the inheritance. Therefore, the instant disposition made on a different premise is unlawful.

(b) Related statutes;

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

1) In light of the aforementioned facts and the historical evidence, as seen earlier, and the purport of the entire pleadings, the following circumstances can be revealed.

A) On October 28, 2009, the Plaintiff asserted that “the Plaintiff and BB submitted to the Defendant a report on the inheritance tax base and the revised report of the inheritance tax base, and filed a report on the tax base of the inheritance tax, all farmland in the inherited property owned by the Plaintiff, and the remaining real estate owned by BB, etc., and even according to the details of the inherited property by inheritor, the Plaintiff’s inherited property value of the instant trust property already belonged to the Plaintiff at the time of the agreement on the division of inherited property, in light of the fact that: (a) the trust property value of the instant trust property is up to 3/9, out of the total value of the inherited property; (b) the instant trust land is not entirely included in the details of the instant inherited property; (c) not only was reported with the inherited property but also was reported with the inherited property; and (d) it is not enough to recognize the above assertion on the ground that the land ○○○-dong ○○○-dong, ○○-dong,

B) On the contrary, according to the Plaintiff’s assertion on the foregoing A, while the Plaintiff’s inherited property exceeds the statutory inherited property, it may be deemed that there existed additional room for division as to the instant trust property inasmuch as the inherited property falls short of the statutory inherited property.

C) Although the Plaintiff and BB, etc. did not have any particular impediment to the restoration of the title of registration of the instant trust land after the inheritance tax base return, they did not take any measure or make any particular agreement until EE sells the instant land, including the instant trust land. On May 27, 2013, the Defendant, on the ground that the notice of imposition of capital gains tax was not made on May 25, 2009, on the ground that the notice of notice of imposition of capital gains tax was not made on the grounds that the Plaintiff and B, etc. was not made on June 4, 2013, which was the date of commencing the inheritance.

D) The instant divided consultation explicitly states that the subject of division is the subject of an agreement on division of inherited property by providing that “the amount corresponding to the instant trust land out of the transfer price of the instant land, which was received from EE,” rather than the instant trust land.

E) After the commencement of the inheritance, the instant trust land continues to exist in the EE name without division consultation as to the instant trust land, and the ownership transfer registration was completed due to the sale of the instant land to FF, the third party, and thus, it was impossible to consult on the division of inherited property for the instant trust land itself, which is inherited property.

F) The retroactive effect of the division of inherited property is recognized only when the inherited property is acquired by the division in kind, i.e., the inherited property itself, and the retroactive effect does not arise if the inherited property is acquired in substitution for the inherited property without the acquisition of the inherited property itself. As to the land of this case, which is inherited property, there is no room for recognizing the retroactive effect of the division of inherited property by the division agreement only when there is no division agreement at the time of the title trust.

G) In the partition of co-owned property, the plaintiff asserts that it is possible to divide the proceeds of sale on the ground that the division of proceeds is recognized in addition to the division of proceeds in kind. However, the "price division" recognized in the partition of co-owned property means the division of proceeds to some co-owners on the premise that the original part is divided, not the "price" itself.

2) In light of the aforementioned circumstances, it is reasonable to view that the Plaintiff, the co-inheritors, and BB, etc., maintained without holding a consultation on the division of the inherited property regarding the instant trust land, which was in the title trust status, and jointly inherited property as an ombudsman. After the issue of taxation of capital gains tax, the instant divided agreement was made only when the instant trust land was sold, and as such, it cannot be deemed as an inherited property division agreement under Article 1015 of the Civil Act, since it was subject to the sales price after the instant trust land was sold, the instant divided agreement cannot be deemed as an inherited property division agreement under Article 1013 of the Civil Act.

Therefore, the instant disposition taken by deeming the Plaintiff and BB, etc. as co-inheritors with respect to the income tax on the transfer of the instant trust land under the premise that the instant trust land was not attributed to the Plaintiff’s sole ownership immediately after the commencement of the inheritance or immediately after the commencement of the inheritance, based on the agreement on the division of inherited property, is lawful, and this cannot be said to be contrary to the principle of substantial taxation, and the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.