An estimated inherited property, the use of which is unclear, is deemed to have been inherited by the heir, and excluded by the testamentary donee.

According to the former Inheritance Tax and Gift Tax Act, an unclear amount used as the property prior to the commencement of inheritance shall be deemed to have been inherited by the heir, and it shall be deemed that the heir and testamentary donee have inherited, and it shall be unreasonable to specify the total amount of inheritance tax to the heir and testamentary donee

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

1. The Defendant’s imposition of KRW 100,693,50 on December 15, 2004 against Plaintiff ○○○○○ on December 15, 2004, of KRW 74,754,630 on inheritance tax for 2001 against Plaintiff ○○○○○, and of KRW 15,837,840 on Plaintiff ○○○○, and of KRW 37,694,070 on Plaintiff ○○○○.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances of dispositions;

The following facts are not disputed between the parties, or may be recognized by each entry in Gap's 1 to 3, Gap's 2, 3, and Eul's 4 to 5 (including each number):

A. On March 23, 2001, ○○○○ bequeathed all property, such as real estate, deposits, etc., to the Plaintiffs, a kys, by will.

B. ○○, an adoptee of the Plaintiffs and the network ○○○○○, was deceased on April 24, 2001 by the network ○○○○○○, but did not report and pay inheritance tax even though inheritance and testamentary gift were commenced.

C. On October 15, 2004, the Defendant: (a) investigated the property of ○○○○○○ on the property of 341,479,826 won of testamentary gift property; (b) 650,563,200 won of testamentary gift property; and (c) 962,225,444 won of the disposal property prior to the commencement of the inheritance; and (c) determined and notified the Plaintiffs and ○○○○○ in total of 449,950,430 won of inheritance tax in 201.

D. The plaintiffs appealed and filed an appeal with the National Tax Tribunal on August 3, 2005 on the objection on February 23, 2005. The National Tax Tribunal decided that the tax base and tax amount should be excluded from the taxable amount of inheritance taxes, and that the remaining claims shall be dismissed.

E. After that, according to the decision of the National Tax Tribunal, the Defendant corrected the total amount of tax to KRW 351,952,120, and as a result, the Defendant imposed an inheritance tax of KRW 100,693,50 on the Plaintiff ○○○○○, KRW 74,754,630, KRW 15,837,840, and KRW 37,694,070 on the Plaintiff ○○○○○, respectively (hereinafter referred to as “the instant disposition of imposition of the remaining inheritance tax”).

2. Determination of legality of disposition

A. The plaintiff's assertion

Despite the fact that the Plaintiffs were testamentary donees who received the property bequeathed from the deceased ○○○○○○○○○○○○○○○-○○○○○○-○○○○○○-○○○-○○○○○○○○○, which was disposed of within two years from the date of commencing the inheritance by applying Article 15(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 202), the Defendant’s disposal of the amount of KRW 60,264,09 (=78,826,444-18,562,435) out of the amount withdrawn from the deposit account of an ancestor within two years from the date of commencing the inheritance, which was the property disposed of within two years from the date of commencing the inheritance, by applying Article 15(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002).

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) The main text of Article 3(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007) provides that an heir (referring to an heir under the provisions of Articles 1000, 101, 103, and 104 of the Civil Act; including a person who renounces inheritance under the provisions of Article 1019(1) of the same Act and a special relative under the provisions of Article 1057-2 of the same Act) or a person who takes a legacy (including a person who acquires property by donation becoming effective due to death; hereinafter referred to as a "leary donee") shall be liable to pay inheritance tax according to the rate calculated, as prescribed by the Presidential Decree, based on the inherited property received or to be received by each heir among inherited property, and Article 3(3) of the Inheritance Tax and Gift Tax Act provides that an heir shall include not only the donated property which is added to inherited property under the provisions of Article 13 but also the inherited property and gift tax within 10 years before the commencing date.

(2) Meanwhile, Article 15(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002) provides that in cases where the amount of the property of an ancestor, which was disposed of by the ancestor or withdrawn from the property of an ancestor, is more than 200 million won by the type of property within one year before the date the inheritance commences, and where the use is more than 500 million won by the type of property within two years before the date the inheritance commences, as prescribed by Presidential Decree, and where the purpose of use is not open and clear, the heir shall be presumed to be inherited as the property. As to the interpretation of the Act on Taxes and Charges, it shall be interpreted as a requirement for imposition or exemption in accordance with the legal text, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without a reasonable reason (see, e.g.,

(3) As to the instant case, Article 15(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002) provides that where the decedent disposed of property above a certain amount of money on the date of commencing the inheritance, and the purpose of use is objectively unclear, it shall be presumed that the heir succeeds to the property if it is objectively unclear. The facts that the Plaintiffs are not the heir of the deceased ○○○○○○, but the testamentary donee are the same as seen earlier. Thus, even if the property was bequeathed by the deceased ○○○○○○, even if they were received, inheritance tax under

Therefore, the instant disposition taken on the premise that the plaintiffs are the successors of the network ○○○○○○ is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition by the assent of all.

Related Acts and subordinate statutes

[former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007)]

Article 3: Inheritance Tax Payment Liability ① Inheritor (referring to the inheritor under Articles 1000, 101, 1003 and 1004 of the Civil Act, and including the person who renounces inheritance under Article 1019 (1) of the same Act and the special relative under Article 1057-2 of the same Act; hereinafter the same shall apply) or person to whom a testamentary gift is made (including the person who acquires the property by gift becoming effective due to death; hereinafter referred to as the “ testamentary donee”) shall be liable to pay inheritance tax according to the ratio calculated, as prescribed by the Presidential Decree, based on the property received or to be received by each person, from among inherited property of the inheritance tax imposed pursuant to this Act: Provided, That in case where the special relative and testamentary donee are a profit-making corporation, the inheritance tax shall be exempted to be paid by the profit-making corporation (in case of the profit-making corporation, the inheritance tax shall be exempted.

[Inheritance Tax and Gift Tax Act]

Article 3 Obligation to Pay Inheritance Tax

(3) The inherited property under the provisions of paragraph (1) shall include the donated property which a successor or a testamentary donee has received, from among the donated property added to the inherited property under Article 13.

(4) Inheritance tax under the provisions of paragraph (1) shall be jointly and severally liable to pay within the limit of property received or to be received by each heir or testamentary donee.

Article 13(1) Taxable amount of inheritance taxes shall be the amount calculated by adding the value of the inherited property under the provisions of the following subparagraphs, after deducting the amount under the provisions of Article 14 from the value of the inherited property:

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.

(2) In the application of the provisions of paragraph (1) 1 and 2, where inheritance commences due to the death of a nonresident, it shall be added only where the property in Korea is donated.

[former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002)]

Article 15 (Presumption of Inheritance, etc.) (1) Where an ancestor disposes of the property of the inheritee or bears the obligation, and where it falls under any of the following subparagraphs, the heir shall be presumed to have inherited property:

1. Where the amount obtained by disposing of the property of the decedent or withdrawn from the property of the decedent, is not less than 200 million won by the type of property within one year before the commencing date of the inheritance and not less than 50 million won by the type of property within two years before the commencing date of the inheritance

[former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008)]

Article 11 (Scope of Property or Debt to be Included in Taxable Amount of Inheritance Taxes)

(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 following classification by types 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 decedent has withdrawn money, etc. (hereafter in this Article, referred to as “money, etc.”) from the inherited property, the money, etc. actually withdrawn within one or two years prior to the date on which the inheritance commences. In this case, where the relevant money, etc. has been deposited through the passbook or the truster’s account, etc. as prescribed by the Ordinance of the Ministry of Finance and Economy, it shall be such money, etc. as calculated by deducting the aggregate of money, etc. deposited during the relevant period from the aggregate of such money, etc. withdrawn within one or two years prior to the date on

[Enforcement Decree of the Inheritance Tax and Gift Tax Act]

Article 11 (Scope of Property or Debt to be Included in Taxable Amount of Inheritance Taxes)

(2) The term "where the purposes of use is not objectively clear 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;