The burden of proving the amount of the disposal property prior to the commencement of the inheritance, whose use is unclear.

In the case of disposing of inherited property before the commencement of the inheritance, if the tax authority proves that the purpose of the disposal is not objectively clear, by the provision that substantially converts the burden of proof on the source of the disposal price, it is presumed that the heir is inherited property unless the taxpayer proves the purpose of the disposal price, but there is no proof on the heir's property.

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

1. Of the instant lawsuit, the part of the Defendant’s claim for revocation of the imposition of KRW 7,587,650, which was reverted to the Plaintiffs on February 01, 2007, is dismissed.

Each disposition of imposition of KRW 40,372,440, and inheritance tax of KRW 7,587,650, belonging to the year 2004, belonging to the defendant on April 18, 2006, against the plaintiffs shall be revoked.

1. Details of the disposition;

A. On October 06, 2004, the largest ○○ died. The Plaintiffs filed a return on the tax base of KRW 23,763,485 on April 6, 2005 with the taxable value of inherited property KRW 702,019,362, and the tax base of KRW 182,019,362.

B. In the process of investigating the Plaintiffs’ inherited property, the Defendant deemed that the decedent transferred KRW 2,364 square meters prior to ○○○○○○○-○○-○○-2,364 square meters (hereinafter “instant land”) to KRW 60 million on May 27, 2004, and imposed KRW 85,596,00 on the Plaintiffs on August 18, 2006. Meanwhile, within two years prior to the date of commencing the inheritance, the Defendant deemed that the decedent reported KRW 1,00,000 to KRW 4,00,000, KRW 206, KRW 506, KRW 200, KRW 506, KRW 2006, KRW 506, KRW 2005, KRW 506, KRW 2006, KRW 5006, KRW 2005, KRW 205,000, KRW 506,000, KRW 205,006.

C. As a result of re-audit of the inherited property around October 2006 by the plaintiffs around November 20, 202, the defendant confirmed that ○○○ had sold the land of this case for KRW 457,60,000 and sold it to ○○○○○○ on or around May 2004, around KRW 85,596,00, which was imposed on the plaintiffs on April 18, 2006. Accordingly, the defendant revoked the disposition imposing capital gains tax and resident tax of KRW 85,596,00, which was imposed on ○○○○○○ on KRW 6050,000, which was total of KRW 917,60,600,000 within two years before the date of commencing the inheritance. Among them, it is clear that 547,600,000,000 won was used for purchasing other real property, but it is clear that the remaining amount was 370,000,00080 won,00800 won,0808.

[Ground of recognition] Facts without any dispute, Gap evidence 1, Eul evidence 1-3, Eul evidence 2-3, Eul evidence 1-2 and the purport of the whole pleadings

2. Whether the part concerning the claim for revocation of the disposition imposing inheritance tax on October 1, 2007 among the lawsuit of this case is legitimate

A. Article 56 (2) of the Framework Act on National Taxes provides that "no administrative litigation against any illegal disposition of national taxes shall be instituted without going through a request for examination or adjudgment under this Act and a decision thereon." However, there is no dispute between the parties concerned as to the fact that the Plaintiffs did not undergo a request for examination or adjudgment under the Framework Act on National Taxes with respect to the disposition of imposition of inheritance tax on February 01, 2007

B. The plaintiffs asserts that it is unnecessary to go through the procedure of the previous trial since the imposition of transmission tax and illegality of the transmission tax on April 18, 2006 are identical.

Article 18(3)1 and 2 of the Administrative Litigation Act provides that when there has already been a ruling of rejection of an administrative appeal with respect to the same type of case, when one of the dispositions related to each other's contents or dispositions taken by stages for the same purpose has already been made an adjudication of an administrative appeal, a revocation lawsuit may be instituted without filing an administrative appeal. This does not constitute a case where a prior trial proceeding is deemed to be unlawful because of the lack of the prior trial procedure, if a ruling of rejection is expected due to the clarification of the result of the adjudication of the administrative appeal.

According to the evidence Nos. 3-1 and 2-2 of this case, it can be acknowledged that the plaintiffs issued a ruling of dismissal of a request for a trial on Nov. 27, 2006 upon receiving a request for national tax trial on Nov. 27, 2006 against the disposition of prompt delivery on Nov. 28, 2006. As such, the part of the lawsuit seeking revocation of the disposition of imposition of inheritance tax on Oct. 28, 2007 cannot be deemed to constitute an exception without passing an administrative appeal until the deadline for filing a request for a trial on May 28, 2007 expires, unless the decision of adjudication was not rendered on May 28, 2007, as well as at the time when the period for filing a request for a trial on May 28, 2007.

3. Whether the imposition of inheritance tax on April 18, 2006 is legitimate.

A. The plaintiffs' assertion

(1) The purchase price of each of the instant lands was used as the acquisition fund of other real estate, the inheritee’s living expenses, hospital expenses, etc., and the Plaintiffs did not inherit the purchase price of each of the instant lands from the inheritee.

(2) The amount of money for each of the instant lands is not KRW 186,480,000, but KRW 125,920,000.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Judgment on the first argument of the plaintiffs

(A) Facts of recognition

(3) In full view of the purport of each of the arguments set forth in subparagraph 4-1 through 3, an inheritee shall transfer the land of this case to ○○○○○ on November 20, 2002 and received the above price around that time. An inheritee shall transfer the land of this case to ○○○○○ on November 1, 2002, and an inheritee shall transfer KRW 160,000,000 to ○○○○○ around the end of November, 200 and received KRW 80,000 out of the price, and received KRW 30,000 from 0 until the end of March 2003, and received KRW 80,000 from 0,000 among the price of the land of this case; ② The decedent shall be 0,000,000,000 won out of the price of the land of this case to ○○○○○○ on around November 20, 2002.

(B) Determination

Article 15(1)1 of the Inheritance Tax and Gift Tax Act and Article 11(1) and (2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, in cases where an ancestor disposes of inherited property before the date of commencing the inheritance, there is a concern for the tax authorities to seek unfair mitigation of inheritance by inheritance in cash to an heir whose taxation data are not easy to be exposed. Thus, in cases where the tax authorities have proved, by the regulations substantially converting the burden of proof in order to prevent this, that the amount has been inherited in cash, unless the taxpayer proves that the purpose of use is objectively unclear, it shall be presumed as inherited property even if the heir does not prove that the amount has been inherited in cash, but the heir does not prove the purpose of use. As seen above, the use of 370,000,000 won out of the sale price of each land of this case is objectively unclear. Thus, this part

(2) Judgment on the second argument by the plaintiffs

The transfer price of each of the lands of this case is KRW 917,60,000 in total, and 547,60,000 in that amount is clearly used as a purchase fund of other real estate, but the remaining KRW 370,000 in that amount is unclear. However, as seen earlier, it is not clear that the use is objectively unclear, the amount is KRW 186,480,000 (=370,000,000 in an amount equivalent to KRW 917,60,000 under Article 11(4)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act(183,520,000 in an amount equivalent to KRW 20/100 in total). Therefore, there is no ground for the plaintiffs' assertion that the amount whose use is unclear is KRW 125,920,000 in that amount.

4. Conclusion

Therefore, the part of the claim for revocation of the disposition imposing inheritance tax as of 01.02.02.01 among the lawsuit of this case is unlawful, and thus, the part of the claim for revocation of the disposition imposing inheritance tax as of 18.04.18 is dismissed. It is so decided as per Disposition.

Relevant statutes

Inheritance Tax and Gift Tax Act

Article 15 (Presumption of Inheritance, etc.) (1) In case where an ancestor disposes of the property of the inheritee or bears the obligation, and where it falls under any one of the following subparagraphs, it shall be presumed to have been inherited and included in the taxable amount of inheritance taxes under the provisions of Article

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

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

Enforcement Decree of Inheritance Tax and Gift Tax Act

(1) In applying the provisions of Article 15 (1) 1 of the Act, the disposal amount and the withdrawn amount of the property to be included in the taxable amount of inheritance taxes under Article 11, shall be the total amount calculated by adding up the amounts calculated according to the classification falling under any of

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) The term "where the purposes of use is objectively unclear as prescribed by Presidential Decree" in Article 15 (1) 1 and 2 of the Act means cases falling under any of the following subparagraphs:

1. Where the other party to a transaction who has paid the amount received by an ancestor from disposing of the property or the money, etc. withdrawn from the property of the ancestor or the amount borne by the ancestor, and the other party to the transaction who has paid the received money (hereafter in this Article, referred to

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 a person who has a special relationship with an inheritee under Article 26 (4) is not recognized by social norms;

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, property status, etc. of the inheritee;

(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) The term “property by category” in Article 15 (1) 1 of the Act means those as classified in the following subparagraphs:

1. Cash, deposits, and securities;

2. Real estate and rights related to real estate:

4. Property other than those listed in subparagraphs 1 and 2.