Review Transfer 2009-0295 (2010.02)

Transfer income tax on the transfer income of inherited property with qualified acceptance

Even if an inheritor who has made a qualified acceptance sells inherited property at auction and the bid price belongs to all creditors, the inheritor is liable to pay capital gains tax.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The imposition of capital gains tax of KRW 22,088,80 for the taxable year 2007 against the Plaintiff on November 2, 2009 shall be revoked.

1. Circumstances of dispositions;

A. ○○○○○○○○○-dong 50 ○○○○○○ apartment 101 305 dong 305 (hereinafter “the apartment of this case”) was owned by the original network KimA (living on September 12, 1968). As KimA died on June 10, 2005, the Plaintiff was inherited by the Plaintiff, who was his child. The Plaintiff reported the temporary approval on November 10, 2005, and was subject to the qualified acceptance as the ○ Family Court 2005 Madan9735 on November 21, 2005.

B. After that, HongB, a creditor of the net KimA, completed the inheritance registration of the apartment of this case on April 13, 2007 by subrogation of the heir on the ground of the preservation of the claim that should be paid by the final and conclusive judgment on the claim for the loan against the net KimA ( Daejeon District Court 2006Gahap5813), and received the decision to commence a compulsory auction of real estate from the ○○ Central District Court on April 27, 2007 to 2007ta12457.

C. On November 27, 2007, the apartment of this case was awarded a successful bid in the auction procedure for the above compulsory auction, and the bid price was fully distributed to the creditors of the decedent KimA.

D. On November 2, 2009, the Defendant: (a) deemed that the successful bid of the instant apartment, an inherited property, falls under the transfer; (b) deemed the date of commencing the inheritance to be the time of acquisition; and (c) calculated gains on transfer by calculating gains on the date of the successful bid as the time of transfer; and (d) imposed KRW 22,088,80 as capital gains tax reverted to the year

[Reasons for Recognition] Evidence Nos. 1 through 6, Evidence Nos. 1 and 1, the purport of the whole pleadings

2. Whether a disposition is lawful

A. Summary of the plaintiff's assertion

(1) The Plaintiff is the inheritor who made a qualified acceptance, and the bid price of the instant apartment arising from the said auction is entirely attributed to the inheritance obligee, and the Plaintiff does not belong to the transfer income tax of the instant apartment. Therefore, the Plaintiff is not obliged to pay the transfer income tax under the principle of substantial taxation. Accordingly, the instant disposition on a different premise is unlawful in violation of the principle of substantial taxation.

(2) The Plaintiff’s qualified acceptance does not at all bear the obligation of the inheritee with its own inherent property to the obligees in inheritance, and merely bears the obligation of the inheritee within the scope of the property to be acquired by inheritance. As such, the instant disposition imposing capital gains tax on the transfer income of the inherited property, the qualified acceptance of which was made, on the inheritor, is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) First, the judgment on the argument

The qualified acceptance of inheritance is entirely succeeded to inherited property and inherited property, but it is premised on the succession of inherited property as a result of the division of debt and liability into the scope of inherited property (limited to the limitation of liability for inherited property into the scope of inherited property, and the qualified acceptor does not exclude or limit the qualified acceptor's succession to the comprehensive rights and obligations regarding inherited property). The plaintiff's death on June 10, 2005 by the deceased KimA pursuant to Article 162 (1) 5 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008), regardless of the transfer registration under the name of the plaintiff, the inheritance of the apartment of this case, regardless of its acquisition on June 10, 205, the transferor of the apartment of this case, which was knocked at the above auction procedure, is the plaintiff, and its auction price belongs to the plaintiff (see Supreme Court Decision 200Du150819, Jul. 6, 2000).

(2) Judgment on the second argument

The transfer income tax imposed on the actual transfer income accruing from an auction of real estate, which is an inherited property, is an heir’s inherent obligation. Accordingly, the heir is not liable to repay his inherited property beyond the limit of the property acquired by inheritance. Thus, the disposition of this case on the premise that the obligee and the qualified acceptor are liable to pay transfer income tax on the transfer income accruing from the auction of the apartment in this case does not go against the purport of the qualified acceptance system, which is the protection of the inheritor. Thus, the plaintiff’s above assertion is not reasonable. [In conclusion, the imposition of transfer income tax on the qualified acceptor is not in line with the purpose of the qualified acceptance system, which is the protection of the inheritor. However, the Civil Act provides for the procedure of liquidation of the inherited property required by the qualified acceptor [the qualified acceptor is not in accordance with the Civil Act 5 days from the date of the qualified acceptance (Article 1032), and it is possible to refuse the repayment of inherited property before the expiration of the period of public notice (Article 1033), and it is also necessary to fully or partially repay the inherited property to the creditor who received the preferential and preferential inheritance (Article 13030).

(3) Accordingly, the instant disposition imposing capital gains tax on the Plaintiff on the premise that the subject to whom capital gains from the successful bid of the apartment of this case belongs is a limited inheritor is legitimate.

3.In conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.