Seocho 209west 1271 (No. 18, 2009)

Whether a land and a building owner deducts all debts, such as rental deposit, if they are different;

Where the owner of land and a building are different from the other owner, the building is the object of lease, the lessor becomes the lessor, and the land use relationship is general to be dealt with between the owner of the building and the landowner.

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

1. On December 1, 2008, the part that exceeds 17,173,268 won among the disposition of imposition of inheritance tax of KRW 22,590,821 rendered by the Defendant against the Plaintiff (Appointed Party), the NAB, and the formerCC shall be revoked.

2. The remaining claims of the Plaintiff (Appointed Party) are dismissed.

3. Of the litigation costs, 20% of the costs are borne by the Plaintiff (Appointed Party), and 80% by the Defendant, respectively.

The Defendant’s disposition of imposition of KRW 22,590,821 on December 1, 2008 against the Plaintiff (Appointed; hereinafter referred to as the “Plaintiff”) A, BB, and JeonCC (hereinafter referred to as the “Plaintiff, etc.”) shall be revoked.

1. Circumstances of the disposition;

A. On September 7, 2005, the Plaintiff et al. succeeded to the property including the following details as a result of the death of EDD (hereinafter “the decedent”) and did not report the inheritance tax on the inherited property.

(1) Land owned by the Plaintiff Jeoncheon-si, Jeoncheon-dong, 438-8, 307 square meters, and above ground owned by the inheritee, 886.01 square meters on the ground, and land owned by the inheritee, 438-8, 439-6 square meters and 992 square meters on the ground owned by the decedent, and 3 buildings on the ground owned by the Plaintiff, etc. (hereinafter referred to as “land and buildings”) owned by the decedent, among 438-8, and 439-6 land owned by the decedent

(2) Insurance money of life insurance or non-life insurance received by the Plaintiff, etc. due to the death of the inheritee is KRW 191,381,44. Among them, 10 insurance money of the decedent is the insurance contract that became the policyholder of the decedent, and 10 insurance contract of the policyholder of the Plaintiff Jeon Soo-A is the insurance contract that was the policyholder of the Plaintiff Jeon-A. The insurance contract of the policyholder of the Plaintiff Jeon-A is the insurance contract between ○ Life Insurance Co., Ltd. and ○○ Life Insurance Co., Ltd. on June 13, 201, between the decedent, the beneficiary of the decedent, 250,000, and the insured amount is KRW 20,000 (hereinafter “instant insurance contract”).

B. On December 1, 2008, the Defendant calculated inheritance tax base and tax amount by deducting only the amount of real estate owned by the inheritee in proportion to the value of each land and building and then deducting the amount of the lease deposit and the amount of the lease deposit for 439-6 building owned by the Plaintiff, etc. from the amount of the lease deposit for 438-8 building owned by the deceased and the amount of the lease deposit for 439-6 building owned by the deceased et al., and determined and notified the Plaintiff et al. thereof.

C. On February 27, 2009, the Plaintiff et al. appealed to the Tax Tribunal for a tax trial. On May 18, 2009, the Tax Tribunal dismissed the Plaintiff et al.’s request for a tax trial.

D. On September 15, 2009, the Defendant: (a) deducted KRW 149,50,000, which is a security deposit for the lease of 438-8 building owned by the decedent from the value of inherited property; (b) corrected the inheritance tax base and tax amount; and (c) determined and notified ex officio the Plaintiff, etc. of KRW 22,590,821 of the inheritance tax (hereinafter the inheritance tax corrected as above).

[Ground of recognition] Facts without dispute, Gap evidence I, 5 evidence, Eul evidence Nos. 1 to 3, the purport of the whole pleadings

2. Appropriateness of the disposition; and

A. Recommendation of the plaintiff, etc.

(1) The inheritee bears the obligation to return the lease deposit amounting to KRW 70,000,00 on the site of 439-6, which is the obligation of the inheritee, so that the amount of the inheritee’s inherited property should be deducted.

(2) The Defendant’s insurance money of KRW 18,058,517 (hereinafter “the instant insurance money”) received under the instant insurance contract in which Plaintiff Jeon-A was a policyholder of the insurance money as inherited property is paid by the insurance contract in which Plaintiff Jeon-A actually paid the insurance money, and thus, cannot be deemed as the inheritee’s inherited property.

B. Determination

(1) According to Article 14(1)3 of the Inheritance Tax and Gift Tax Act, where inheritance commences due to the death of a resident, as of the date of commencing the inheritance, the obligation related to the donated property or the inherited property (excluding the donated obligation owed by an ancestor to his/her heir within ten years before the date of commencing the inheritance and the donated obligation owed by an ancestor to a person who is not his/her heir within five years before the date of commencing the inheritance) shall be subtracted from the value of the inherited property.

In light of the following circumstances acknowledged by the purport of the entire pleadings as to whether an ancestor bears the obligation to return the lease deposit with respect to the site of 439-6, Gap, 1, 3, and 9, the plaintiff et al. submitted the lease contract concluded between the decedent and the lessee of the building as to the 438-8 building, which is inherited property; on the other hand, concerning the above 439-6 land, the plaintiff et al. failed to submit the lease contract concluded between the decedent and the lessee of the above land (or the 439-6 building). The plaintiff et al. registered as the real estate rental business operator for the location of the building on January 1, 2005. The plaintiff et al. asserted that only the decedent, who is the owner of the building, bears the obligation to return the lease deposit with respect to the above site of 438-8 real estate owned by the decedent, and that only the plaintiff et al., who is the owner of the building, continues to use the land and the building of this case, should have no other evidence.

(2) The insurance proceeds of this case shall not be deemed inherited property.

Article 8 of the Inheritance Tax and Gift Tax Act provides that insurance money of life or non-life insurance received due to the death of the inheritee under paragraph (1) of this Article, which is received by the inheritee according to an insurance contract that has become a policyholder, shall be considered as inherited property. Article 8 (2) of the Inheritance Tax and Gift Tax Act provides that where the inheritee has actually paid the premium even if the policyholder

In full view of the following circumstances, Gap evidence 6-1 to Eul evidence 6-3, Eul evidence 11, and Eul evidence 4, the insurance money succeeded to by the plaintiff et al. was all concluded by the predecessor; while the plaintiff et al. entered into the contract of this case, only the contract of this case; the plaintiff et al. entered into a bank account in the name of the predecessor (Account Number National Bank 00-00-000-000-000 or 000-000-0000 of the NA) and paid monthly insurance premium of this case at the above bank account; since the monthly insurance premium of this case was paid from the above bank account of the deceased's above bank account, it is insufficient to recognize that the defendant actually paid the insurance premium, and there is no evidence to acknowledge otherwise, the insurance money of this case 18,058,517 won shall not be deemed inherited property.

Therefore, the above assertion by the plaintiff is justified.

(3) Sub-determination (reasonable tax amount)

As seen earlier, when deducting KRW 18,058,517 of the instant insurance proceeds from the value of the inherited property of the inheritee, the amount of inheritance tax due to the death of the inheritee is KRW 17,173,268 of the amount of inheritance tax (the specific calculation details are as stated in the separate calculation table). As such, the Defendant’s disposition of KRW 22,590,821 of the amount of inheritance tax imposed on the Plaintiff, etc. on December 1, 2008 is revoked.

3. Conclusion

Then, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are accepted.

For this reason, we decide to dismiss.