Even if there is no actual receipt of the disposition property before the commencement date of inheritance, it cannot be said that there is a defect of invalidation in the disposition of inheritance tax.

Even if there is no actual receipt of the disposition property, etc. before the commencement of the inheritance, this is a case where it can be clarified whether it is subject to taxation only after accurately investigating the facts. Thus, it cannot be said that there is a defect of invalidation in the disposition of inheritance tax.

Inheritance Tax and Gift Tax Act Article 3 (Inheritance Tax Payment Liability)

Article 15 of the Inheritance Tax and Gift Tax Act: Inheritance presumption, etc. of disposed property before the commencement date of inheritance

2017Guhap82215 Invalidity of Disposition of Imposition of Inheritance Tax

○ Kim

○ Head of tax office

May 9, 2018

June 8, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On December 14, 2016, the Defendant confirmed that an inheritance tax disposition imposed on the Plaintiff on the Plaintiff is null and void.

1. Details of the disposition;

A. The Plaintiff’s husband’s husband’s deceased on July 3, 2014 (hereinafter “the deceased”). The deceased’s heir, the deceased’s husband’s father, is the deceased KimCC (Death on November 19, 2015), 0D, 0E, and net0A, and the Plaintiff’s deceased’s children, who are the substitute heir of the deceased, are the deceased’s spouse’s deceased KimCC (Death on November 19, 2015), 00,000,0000.

B. The Defendant conducted an inheritance tax investigation following the deceased’s death from July 6, 2016 to October 29, 2016, when the deceased’s heir did not file a return on inheritance. From July 6, 2016 to the deceased’s savings account within two years before the deceased’s death, deeming that the use of KRW 0,000,000,000, out of the total amount withdrawn from the deceased’s savings account is unclear, and Article 11(4) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”) was calculated by subtracting KRW 200,000,000 from the above amount under Article 11(4) of the Enforcement Decree of the same Act, and included the portion of the deceased’s inheritance tax to be paid to the Plaintiff on December 14, 2016, including the portion of KRW 00,000,000,000,000,000,000.

C. After that, on January 20, 2017, the Plaintiff reported to waive the inheritance of the deceased and the deceased KimCC’s property as Seoul ○○ court 2017 was 0000, and received the repair decision on May 28, 2017.

Facts that there is no dispute over the basis of recognition, Gap evidence 1 to 6, Eul evidence 1 and 2 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

원고는 남편 망 백AA이 사망한 후 아들 백FF와 생이별을 하고 시댁에서 쫓겨나 25년간 홀로 생계를 꾸리며 생활하였고, 망인으로부터 어떠한 재산도 받은 사실이 없으며, 망인 사망 후 적법하게 상속포기를 하였으므로, 이러한 원고에게 한 이 사건 처분은 실질과세의 원칙을 위반한 것으로서 그 하자가 중대명백하여 무효이다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In order for a taxation disposition to be deemed null and void as a matter of course, the mere fact that the defect in the disposition is unlawful is insufficient, and its defect is in violation of important laws and regulations and must be objectively apparent. In a case where there are objective circumstances that could lead to the misunderstanding that it is subject to taxation with respect to certain legal relations or factual relations that are not subject to taxation, and it can only be clarified whether it is subject to taxation or not, it cannot be said that it is apparent even if the defect is serious, and thus, it cannot be said that the tax disposition that misleads the fact of taxation cannot be deemed null and void as a matter of course (see, e.g., Supreme Court Decision 96Nu12634, Jun. 26, 1998). Meanwhile, in a lawsuit seeking the invalidation of the taxation disposition, the Plaintiff is liable to assert and prove the grounds for invalidity (see, e.g., Supreme Court Decision 91Nu6030, Mar. 10, 1992).

2) Article 15 of the Inheritance Tax and Gift Tax Act provides that where the amount withdrawn from the property of an ancestor exceeds a certain amount within a certain period prior to the commencement date of inheritance, and the use thereof is objectively unclear, such amount shall be presumed inherited by the heir and included in the taxable value of inherited property. This is, in cases where the tax authority proves that there is an objectively unclear amount among them, in order to make it impossible for the heir to unlawfully reduce inheritance tax by donation or inheritance in cash, for which it is not easy to disclose the taxation data on inherited property by the heir, if the tax authority proves that there is such amount, then the taxpayer is objectively unclear, unless the taxpayer proves the use of the proceeds from the disposal of inherited property, the burden of proof shall be practically converted so that the amount can be included in the taxable value of inherited property even if he/she does not prove the

Article 15 of the Inheritance Tax and Gift Tax Act and Article 11(4) of the Enforcement Decree of the same Act determine that the use of KRW 000,000,00,000, out of the amount withdrawn from the deceased’s account, was objectively unclear, the Defendant issued the instant disposition to one of the heirs, including the value of inherited property, and even if the Plaintiff renounced inheritance, Article 3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 12844, Nov. 19, 2014) provides that even if the Plaintiff renounced inheritance pursuant to Article 1019(1) of the same Act, a person who renounced inheritance should also pay inheritance tax based on his/her inherited property, including the inheritor, even if the Plaintiff actually received KRW 0,00,000,000,000 from among the above 0,000,000, which is not subject to taxation, it cannot be deemed that there is a defect in the part where the Plaintiff is found to be subject to taxation of inheritance tax.

3) Meanwhile, the instant disposition includes the portion of inheritance tax imposed on the deceased KimCC upon the deceased, who is the heir of the deceased KimCC, pursuant to Article 24(1) of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015; hereinafter the same).

However, a person who has lawfully waived inheritance does not include “he heir” under Article 24(1) of the Framework Act on National Taxes who succeeds to the obligation to pay national taxes, etc. of the inheritee (see, e.g., Supreme Court Decisions 2013Du1041, May 23, 2013). As seen earlier, the Plaintiff’s lawful renunciation of inheritance and received the decision to accept the report of renunciation of inheritance on May 28, 2017. As such, the Plaintiff may file a claim for reduction of the amount of tax pursuant to the succession to the obligation to pay inheritance tax by the deceased KimCC’s inheritance within the period for filing a request for rectification upon filing a later claim pursuant to Article 45-2(2)5 of the Framework Act on National Taxes and Article 5-2 subparag. 5 of the Enforcement Decree of the Framework Act on National Taxes. However, the Plaintiff is not obliged to dispute the above portion of the obligation to pay inheritance tax in the instant disposition with respect to which he/she received a request for rectification after the lapse of the period of inheritance obligation (see, e.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Relevant statutes

m. Inheritance Tax and Gift Tax Act

Article 3 (Liability for Inheritance Tax Payment (Amended by Act No. 12844, Nov. 19, 2014)

(1) An heir (referring to an heir under Articles 1000, 101, 103, and 1004 of the Civil Act, and including a person who renounces inheritance under Article 1019 (1) of the same Act and a special relative under Article 1057-2 of the same Act; hereinafter the same shall apply) or a person to whom a legacy is made (including a person who acquires property by donation becoming effective due to the death; hereinafter the same shall apply) shall be liable to pay inheritance tax according to the rate calculated, as prescribed by Presidential Decree, based on the property received or to be received by each heir among inherited property imposed pursuant to this Act: Provided, That where a special relative or a testamentary donee under Article 1057-2 of the Civil Act is a profit-making corporation, the inheritance tax to be paid by such profit-making corporation shall be exempted, and where there is a heir or a lineal descendant among the shareholders or investors of such profit-making corporation, the heir and his/her lineal descendant shall pay an amount equivalent to the share calculated

(2) The inherited property under paragraph (1) shall include the donated property the heir or testamentary donee has received, among the donated property added to the inherited property under Article 13.

(3) Inheritance tax under paragraph (1) shall be jointly and severally liable to pay to the extent of property each heir or testamentary donee has received or is to receive.

Article 13 (Taxable Value of Inherited Property)

(1) The taxable value of inherited property shall be the amount calculated by adding the following value to the value of inherited property after deducting the amount stipulated under Article 14 from the value of inherited property. In such cases, if the amount under Article 14 exceeds the value of inherited property, such amount in excess shall

1. The value of property donated by an ancestor to his/her heir within ten years before the commencement date;

2. The value of property donated by an ancestor to a person other than his/her heir within five years before commencing the inheritance.

Article 15 (Presumption, etc. of Inheritance of Property Disposed of before Commencement Date of Inheritance)

(1) Where an ancestor disposes of property or bears an obligation and falls under any of the following cases, such property shall be presumed inherited and included in the taxable value of inherited property under Article 13:

1. Where an amount received by disposing of property by an ancestor or withdrawn from the property of the ancestor, is at least 200 million won calculated by type of property within one year before the date inheritance commences, or where the use thereof is not less than 500 million won by calculating by type of property within two years before the date inheritance commences,

2. Where the total amount of debts borne by the ancestor is at least 200 million won within one year before the date inheritance commences, and where the use is not objectively obvious, as prescribed by Presidential Decree, within two years before the date inheritance commences.

(3) Matters concerning calculation of the amount, etc. received or withdrawn from the property by disposing of the property prescribed in paragraph (1) 1 and classification by type of property shall be prescribed by Presidential Decree.

【Enforcement Decree of the Inheritance Tax and Gift Tax Act

Article 11 (Scope of Property Included in Taxable Value of Inherited Property)

(1) In applying Article 15 (1) 1 of the Act, the disposal amount and withdrawn amount of property shall be the sum of the amounts calculated according to the classification in each of the following subparagraphs for each type of property:

1. Where the property of an ancestor is disposed of, the amount actually earned within one or two years before the date inheritance commences, from the proceeds from such disposal;

2. Where the property of the money, etc. received by an ancestor (hereafter in this Article, referred to as "money, etc.") has been withdrawn, the money, etc. actually withdrawn within one year or two years before the date on which inheritance commences, from among the inherited property. In such cases, where the relevant money, etc. has been deposited through a passbook or a truster's account prescribed by Ordinance of the Ministry of Strategy and Finance, it shall be such money, etc. as calculated by deducting the aggregate of the money, etc. deposited in the relevant period from the aggregate of such money, etc. withdrawn within one year

(2) Where the use is objectively unclear, as prescribed by Presidential Decree, in Article 15 (1) 1 and 2 of the Act, means any of the following cases:

1. Where the amount received by an ancestor from the disposal of assets of an ancestor or the money, etc. withdrawn from the assets of the ancestor or the amount borne by the ancestor, and the opposite contractual party who disbursed the received amount (hereafter in this Article, referred to as the “ opposite contractual party”)

2. Where the fact of receiving money, etc. is not denied by the opposite contractual party, or the fact of receiving money, etc. is not recognized in light of financial status

3. Where the opposite contractual party is not recognized by social norms as a specially related person of an inheritee.

4. Where other assets acquired by the predecessor with money, etc. received by him/her are not verified;

5. Where disbursement is not recognized in light of the age, occupation, career, income and property of the inheritee;

(3) "Where an heir is presumed not to have an obligation for payment, as prescribed by Presidential Decree" in Article 15 (2) of the Act means cases where the fact that an heir actually bears is not verified by the documents, etc. referred to in Article 10 (1) 2.

(4) In the application of the provisions of paragraph (2), if the amount not proved by the provisions of each subparagraph of the same paragraph is less than the smaller amount among the following subparagraphs, it shall be presumed that the use is objectively unclear, and if the amount is not less than that, the use is presumed objectively unclear:

1. An amount equivalent to 20/100 of the amount received by the predecessor by disposing of his/her property, or the money, etc. withdrawn or liable from his/her property, and the amount received;

2. Two hundred million won.

(5) "Types of property under Article 15 (1) 1 of the Act means those classified as follows:

1. Cash, deposits, and securities: The end;

(1) The former Framework Act on National Taxes (Amended by Act No. 13552, Dec. 15, 2015)

Article 24 (Succession of Tax Liability due to Inheritance)

(1) When inheritance commences, the heir (referring to the heir under Articles 1000, 1001, 103, and 104 of the Civil Act, and including testamentary donee under the main sentence of Article 3 (1) of the Inheritance Tax and Gift Tax Act; hereafter the same shall apply in this Article) or administrator of inherited property under Article 1053 of the Civil Act shall be liable to pay national taxes, additional dues, and expenses for disposition on default imposed on, or payable by, the ancestor to the ancestor within the extent of the inherited property.

Article 45-2 (Request for Correction, etc.)

(2) Where any of the following grounds arises, a person who has filed a tax base return by the statutory deadline for return, or who has the tax base and amount of national taxes determined may request the determination or correction within three months from the date he/she becomes aware that such ground has occurred, regardless of the period referred to in paragraph (1):

1. Where the transaction, act, etc. which forms the basis of calculation of the tax base and the amount of tax in the initial return, determination or correction is confirmed as a different one by a final judgment (including any reconciliation or other act having the same effect as the judgment) in the lawsuit against it;

2. Where a determination or correction exists, converting the ownership of the income or other taxable object to a third person;

3. Where mutual agreement under a tax treaty is implemented differently from the details of the initial return, determination or correction;

4. Where the tax base and amount of the national tax initially returned for the taxable period other than the taxable period subject to the decision or rectification, due to such decision or rectification, exceed the tax base and amount to be returned under the tax-related Acts;

5. Where the ground similar to those referred to in subparagraphs 1 through 4 and prescribed by Presidential Decree, occurs after the statutory due date of return of the national tax expires.

【Enforcement Decree of Framework Act on National Taxes

Article 25-2 (Ex Post Factor Causes)

"Grounds prescribed by Presidential Decree" in Article 45-2 (2) 5 of the Act means any of the following cases:

1. Where, in making the initial return, determination, or revision, the permission or other disposition of the authorities related to the validity of transactions or actions, etc. which served as the basis for the calculation of the tax base and amount of tax, is revoked;

2. Where, in cases of the initial return, determination, or revision, a contract related to the validity of a transaction, act, etc. which forms the basis for calculating the tax base and amount of tax is cancelled by the exercise of the right of rescission or is cancelled or cancelled due to unavoidable reasons that occur after

3. Where, at the time of the initial return, decision, or revision, the tax base and the amount of tax could not be calculated due to the seizure of books and records and documentary evidence, or other inevitable reasons, but the relevant reasons cease to exist thereafter

4. Where domestic stocks, etc. invested overseas under Article 118-10 (1) of the Income Tax Act are actually transferred, and the difference between the actual transfer value and the transfer value as of the date of departure under the main sentence of the same paragraph occurs.

5. The case that falls under any cause similar to those prescribed in subparagraphs 1 through 4.