Suwon District Court 201Guhap5408 ( December 08, 2011)

Early High Court Decision 201J 1631 (OO 28, 2011)

The portion of penalty tax is illegal because there is a justifiable reason for the neglect of inheritance tax liability.

In light of the following: (a) the Defendant was unable to clearly know whether it was a proximate causal relation with exposure to defoliants; and (b) without any particular error in failing to know, the Defendant’s declaration of inheritance tax in accordance with the guidance of the tax accountant and the fact that it reported non-taxation is recognized as justifiable

Inheritance Tax on the war dead, etc. under Article 11 of the Inheritance Tax and Gift Tax Act

2014Nu2906 Revocation of Disposition of Imposing capital gains tax, etc.

1. AB 2.B 3. MediationCC

The director of the tax office shall correct the head of the tax office.

Suwon District Court Decision 201Guhap5408 Decided December 8, 2011

Seoul High Court Decision 2012Nu1671 Decided June 20, 2012

Supreme Court Decision 2012Du16275 Decided February 27, 2014

September 16, 2014

1. Upon receipt of a claim for change in exchange at the trial, the disposition of imposition by the Defendant on July 1, 2014 against the Plaintiffs is revoked.

2. The plaintiffs' remaining claims are dismissed.

3. 3/4 of the total litigation costs is assessed against the plaintiffs, and the remainder is assessed against the defendant.

1. Purport of claim

On December 1, 2010, the judgment that the Defendant revoked each disposition of imposition of the main tax of inheritance tax imposed on the Plaintiffs on the Plaintiffs on July 1, 2014 (the Plaintiff sought revocation of each disposition of imposition of the main tax of inheritance tax, the head tax of which was imposed by the Defendant on the Plaintiffs (the Plaintiff sought revocation of each disposition of the head tax of inheritance tax, the head tax of which was imposed by the Defendant on the Plaintiff Cho Dong on December 1, 2010, but the lawsuit on additional tax was modified in the trial as above).

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiffs' claims are dismissed.

1. Details of the disposition;

A. Plaintiffs’ report of inheritance tax

"The plaintiff B's husband, the plaintiff ChoA and ChoCC (hereinafter "the decedent") died on March 6, 2009, and the plaintiffs died on September 24, 2009, with the value of inherited property as OOO on September 24, 2009, and since the decedent died from defoliants after defoliants due to the Vietnam War, the decedent was exempted from inheritance tax on the war dead under Article 11 of the Inheritance Tax and Gift Tax Act (hereinafter "Inheritance Tax Act") and reported inheritance tax on the deceased's inherited property."

"The defendant, after conducting an inheritance tax investigation on the deceased, denied the exemption from inheritance tax on the deceased, etc., and on December 1, 2010, imposed and notified the following: (a) on the inheritance tax calculated by adding the value of the inherited property to the OOOOOO(including additional tax OOOOO) on the deceased; (b) on July 1, 2014, the part on the penalty tax was revoked on the ground that the type of penalty tax and the grounds for calculation were not stated; and (c) on the ground that the Plaintiff B and CC were jointly and severally liable for tax payment, imposed additional tax on the OOO(general under-reported additional tax, OOOO, and OOOO of the additional tax on non-payment (hereinafter referred to as the "disposition of this case by combining the above disposition of the inheritance tax and the principal tax as mentioned above); and (d) the amount of tax to be paid by each inheritor is the Plaintiff BOOOO(214%) and the Plaintiff’s OOO(3430%(39%).

The plaintiffs filed an appeal with the Tax Tribunal on April 25, 201 against the "disposition imposed and notified by the defendant on December 1, 2010" and filed an appeal with the Tax Tribunal on April 25, 201, but the above appeal was dismissed on June 28, 2011, [the grounds for recognition], [the absence of dispute], Gap's statements in Gap's 1, 21, 33, 34, Eul's 1, 2, and 3 evidence (including the number of branches), the purport of the whole pleadings, and the purport of the whole arguments.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs, while the decedent was exposed to defoliants in Vietnam and caused the death of multiple species. Since proximate causal relation is sufficiently recognized between exposure to defoliants and the outbreak of multiple species during the Vietnam War of the decedent, the disposition of this case that did not apply is unlawful even though Article 11 of the Inheritance Tax Act should be applied to the plaintiffs. Even if the plaintiffs' inheritance tax and non-taxation provisions cannot be applied, there are justifiable reasons for the failure to pay taxes, and therefore, the part of the penalty tax of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Registration of patients suffering from actual aftereffects of defoliants of the deceased

"A) The decedent entered the Army on April 14, 1965 and was discharged from the Vietnam War on March 23, 1968 from June 20, 197 to March 23, 1968, and the decedent frequently appealed after discharge from the military. Since the decedent was diagnosed with blood cancer called 'the dysium dysium' in 1996 and 1997, until February 2009, the decedent was subject to blood breeding treatment and the dysium cell transplantation in the Seoul National University Hospital; b) the decedent was registered with the head of the Suwon National Veterans Office around June 24, 2003 by the decedent, and was designated as the dysium patient's disease support (amended by Act No. 7875, Mar. 3, 2006; c. 3).

A) Thereafter, around February 2009, the decedent was found to have been in her brain death condition at the Aju University Hospital, but died on March 6, 2009. However, in the death diagnosis report issued by the above hospital, the direct death is indicated in the column of death as acute dystypology, intermediate events, and the pre-explosion type, and in the remarks column of the medical certificate, the patient was in the past to be exposed to defoliants, and is closely related to the outbreak of diversified dyspology, and the patient was dead due to the aggravation of dyspology and the merger of dyspology.

B) Among the lineal relatives of the inheritee, there is no person who suffers from or dies of a multi-fluoral fluoral colon, and the average male life is 76.5 years old as of 2008 according to the Statistics Korea’s investigation, and the inheritee’s age is 65 years old as at the time of the death of

3) Characteristics of various species

A) According to the results of various epidemiological investigations such as the report of the U.S. National Institute of Medical Sciences, it is announced that there is an epidemiological causal relationship between the exposure to harmful substances contained in defoliants and the dystrophism, and in particular, the average diving of the occurrence of cancer caused by multi-households contained in defoliants for not less than 20 years (see Seoul High Court Decision 2002 NaOOOOOO, Jan. 26, 2006). Even according to the final report on the epidemiological investigation of the damage caused by defoliants conducted in the annual medical center and the Ministry of Patriots and Veterans Affairs, the cancer occurrence rate of the Vietnam War veterans included highly significant multi-dystrophous cancer compared to the total male population, and the death rate therefrom is significantly higher than the total population of the Republic of Korea.

B) Multi-patch dystrophy species are blood cancer which shows the abnormal differentiation and proliferation of dystrophy cells, which is the most shaking symptoms of waste and hystrophyitis, which is the most shaking of the causes of death that occurred before diagnosis or during treatment.

[Ground of recognition] Facts without dispute, entry or video of all or part of Gap evidence Nos. 2 through 29, and purport of whole pleadings

D. Determination by issue

1) Whether inheritance commences due to an injury or disease sustained in the course of performing official duties

(A)the causal relationship between war or other equivalent performance of official duties and injury or disease

Article 11(1) of the former Inheritance Tax Act provides that no inheritance tax shall be levied in cases where inheritance commences due to death caused by war or other death equivalent thereto, or by injury or disease incurred in the course of performing official duties.

In light of the language and purport of the above provision, in order to be exempted from inheritance tax pursuant to the above provision, there should be a causal relationship between the performance of war and other equivalent official duties (hereinafter referred to as ¡°war, etc.¡±) and the injury or disease, and such causal relationship should be proved to the extent that there is a proximate causal relationship between the performance of war, etc. and the injury or disease when considering all the circumstances, even if it is not clearly proven in medical and natural science.”

(1) The proximate causal relation between the relevant provisions of the defoliant Act

" 고엽제법은 제5조 제1항 각 호에서 고엽제 후유증으로 보는 각종 질병을 열거하는 한편, 일정한 기간 내에 월남전 등에 참전하고 전역된 자 등으로서 제5조 제1항 각 호에 규정된 각종 질병을 얻은 자를 고엽제 후유증 환자로 결정 ・ 등록하고(제4조), 이렇게 결정 ・ 등록된 자 중에서 구 국가유공자 등 예우 및 지원에 관한 법률(2008. 3. 28. 법률 제9079호로 개정되기 전의 것, 이하국가유공자법'이라고 한다) 제6조의4 제1항의 규정에 의한 상이등급에 해당하는 장애를 입은 것으로 판정된 자를 국가유공자법 제4조 제1항 제4호에서 규정한 |전상군경'으로 보도록 규정하면서(제6조 제1항), 다만 질병의 발생원인이 고엽제와 관련이 없다고 의학적으로 확실하게 밝혀진 경우에는 고엽제 후유증으로 보지 아니한다고 규정하고 있다(제5조 제3항).", " 이처럼 고엽제법은 국가유공자법에서 정한 국가유공자 요건의 증명이 어려운 고엽제 후유증 환자를 위하여 특별히 별도의 절차를 마련하여 고엽제 살포지역에서 복무하고 전역하였다는 등의 사실이 인정되면 전투 등의 직무수행과 질병 사이의 인과관계를 따지지 않고 일단 국가유공자법 제4조 제1항 제4호의전상군경'으로 보도록 규정하고 있으므로, 고엽제법 제4조, 제5조 제1항 등에 따라 국가유공자로 등록되었다는 사정만으로 그 질병이 전투 등의 직무수행과 상당인과관계가 있다고 추단할 수는 없다.", (2) 역학과 상당인과관계

The term epidemiology is an study aimed at identifying the correlation with various natural and social factors by analyzing the outbreak, distribution, and extinction of diseases as a collective phenomenon in a statistical manner, and finding ways to prevent and reduce the occurrence of diseases by that study, and does not establish the cause of the disease caused by an individual belonging to the group. Therefore, even if it is recognized that there is an epidemiological correlation between a certain risk factor and a certain disease, it does not reveal the existence of the cause of the disease caused by an individual belonging to the group. However, if the rate of the disease caused by a group exposed to a risk factor is higher than the rate of the disease caused by another group not exposed to the risk factor, it can be inferred how the disease caused by an individual belonging to the group might be caused by the risk factor according to the degree of the higher ratio.

In the meantime, “non-specific disease”, unlike ‘specific disease that has occurred by a specific person and clearly corresponding to the cause and result, is complicated with the cause and origin of the disease, and is caused in combination with astronomical factors such as genetic and physical constitutions, drinking, smoking, age, eating habits, occupation and environmental factors. Such non-specific disease is acknowledged to have an epidemiological correlation between a specific risk factor and its non-specific disease. However, as long as there is a high probability that the individual or group exposed to the risk has been exposed to other risk factor, its epidemiological correlation means that the individual is likely to suffer from the disease if exposed to the risk factor, or to increase the risk of the disease, not the conclusion that the cause of the disease is the same.” Therefore, if the non-specific risk factor proves that the non-specific risk factor was exposed to a specific risk factor, it is not probable that the non-specific risk factor was exposed to a specific risk factor, based on an epidemiological comparison between the non-specific risk factor and the non-specific risk factor.

C) Whether the Defendant’s dystroke species were exposed to defoliants

(2) According to the aforementioned facts, it is difficult to conclude that there is a reasonable causal link between the Defendant’s exposure to defoliant 1 and the Defendant’s prior report on the fact that there was no specific risk of exposure to defoliant 1 to the Vietnam War on June 24, 203, and that there was no specific causal link between the Defendant’s exposure to defoliant 1 and the Defendant’s prior report on the fact that there was no specific risk of exposure to defoliant 3,000, based on the fact that there was no specific causal link between the Defendant’s exposure to defoliant 1 and the Defendant’s prior report on the fact that there was no specific risk of exposure to defoliant 9, and that there was no specific causal link between the Defendant’s lineal relatives and the Defendant’s exposure to defoliant 1 and the Defendant’s prior report on the fact that there was no specific risk of exposure to defoliant 3,000.

③ Epidemiological investigations into injury by the Japanese Medical Center and the Ministry of Patriots and Veterans Affairs (the date of December 2006) stipulate that the rate of the outbreak of various kinds of defoliants between the entire male population of the same age group as the Vietnam War veterans, the rate of their death, and the rate of the outbreak of diverse species of defoliants between the Korean War veterans in the Vietnam War, among the soldiers in the Vietnam War, shall be calculated based on an epidemiological investigation into the rate of their exposure to defoliants, and the rate of the outbreak of diverse species of defoliants between the Korean War veterans in the Vietnam War. The above report states that the rate of the outbreak of multiple species of defoliants and the rate of their death, compared with the total male population development. However, it is difficult to view that the report was based on an epidemiological investigation into the total male population including the Vietnam War soldiers in the Vietnam War, and that it was difficult to view that the report was based on a specific difference between the Vietnam War soldiers' exposure to defoliants and the general average group of exposure to defoliants (the foregoing total male population).

Therefore, this part of the Plaintiff’s assertion on the premise that there is a proximate causal relationship between the Defendant’s exposure to defoliants and the outbreak of a perennial species during his Vietnam War is without merit.

2) Whether there is a justifiable reason that is not attributable to the plaintiffs' neglect of duty

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an additional tax is an administrative sanction imposed as prescribed by the Act, and where there are extenuating circumstances where it is unreasonable to expect the taxpayer to fulfill the obligation, and thus, it is not possible to impose an additional tax on the taxpayer (see, e.g., Supreme Court Decision 2004Du930, Nov. 25, 2005).

In the case of this case, the following facts revealed by adding the purport of the oral argument to the above facts, namely, (i) around June 24, 2003, the decedent registered as a patient suffering from defoliants pursuant to the defoliant Act; (ii) the death cause column of the death diagnosis report (Evidence (Evidence (Evidence (Evidence 6) for the decedent), the direct death factor is indicated as acute resistant Smoking; (iii) the ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto.

Therefore, since the defendant's disposition of this case is illegal, the part of additional tax should be revoked, and this part of the plaintiffs' assertion that points this out is reasonable.

3. Conclusion

Therefore, the plaintiffs' claims are reasonable within the above recognition scope, and some of them are accepted (the judgment of the court of first instance was invalidated as the previous lawsuit was withdrawn from the exchange change of claims in the trial). It is so decided as per Disposition.