Fraudulent Gains;

Whether the inheritance tax of this case constitutes unjust enrichment

Article 35 of the National Tax Collection Act

2014Guhap51135 Unlawful gains

KimA and 2

Korea

May 14, 2015

June 11, 2015

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiffs 5% interest per annum from the day after the delivery of the OO and a copy of the complaint of this case to the day of this judgment, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On May 18, 2007, the plaintiffs died on the non-party deceased KimB (hereinafter "the decedent"), who is his father, succeeded to the property of the decedent, together with other inheritors (the decedent's wife, children KimD, KimE, KimF). The inheritors, including the plaintiffs, reported and paid the inheritance tax on November 1, 2007 (hereinafter "the inherited property of this case").

B. After that, the director of the Seoul Regional Tax Office found, as a result of conducting a tax investigation on the instant inherited property, that the right to sell out-to-door GG hotel (hereinafter referred to as "OOG hotel of this case") located in OO (hereinafter referred to as "the hotel of this case") was omitted from the inherited property, and notified the director of the tax office to the director of the tax office of distribution. On December 16, 2008, the director of the tax office notified the successor, including the plaintiffs, of the correction and notification of the OO of the inheritance tax. The heir, including the plaintiffs, paid the revised amount of the above inheritance tax from December 31, 2008 to December 5, 2011 with the annual payment permission.

C. On the other hand, on August 11, 201, Plaintiff Kim H filed an application for rectification of inheritance tax with respect to the heir, including the Plaintiffs, on behalf of the remaining inheritors for the exclusion of the right to sell the instant case from the inherited property. However, on September 30, 201, the director of the distribution tax office issued a disposition of rejection of the application for rectification on the ground that the inheritance was evaluated as the value at the time of commencing the inheritance, and the registration of provisional injunction, such as the sale and purchase by the heir with respect to the hotelOO of the instant case was not cancelled, and that the heir has the right to claim reimbursement against the business operator Kim Jong-hwan, and that the deadline for filing the application for rectification has expired (hereinafter referred to as the “instant rejection disposition”).

D. The Plaintiffs were dissatisfied with the instant refusal disposition and filed a request for review with the Board of Audit and Inspection on August 29, 2013. The Plaintiffs filed a separate suit against the Director of the Tax Office seeking revocation of the instant refusal disposition against the Director of the Tax Office, and are still pending in the lawsuit until the date of closing the argument in

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, Gap evidence 5-1 through 4, Gap evidence 6, 7, Eul evidence 1 through 5, and the purport of the whole pleadings

2. Whether the instant disposition is void as a matter of course

A. The plaintiffs' assertion

The plaintiffs have lost in the lawsuit claiming ownership transfer registration against the hotelOO of this case, and the registration of ownership transfer has already been completed in the third party with respect to the aboveO, and since the non-party Kim II, who is a project implementer, is insolvent, it is also impossible to claim damages or reimbursement. If the above circumstances are the above, since the sale right of this case constitutes a claim deemed irrecoverable at the time of commencement of inheritance, it shall not be included in the value of inherited property pursuant to Article 7 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) and Article 58 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20720, Feb. 29, 2008). Accordingly, the disposition of this case by the head of the distribution office becomes null and void since its defect is obvious and thus, the inheritance tax paid by the plaintiffs should be returned as unjust enrichment.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Relevant legal principles

In order for an administrative disposition to be deemed null and void as a matter of course, it is insufficient to say that there is an illegality in the disposition, and that the defect is objectively obvious because it violates an essential part of the law and regulations (see, e.g., Supreme Court Decision 2011DuO201, Feb. 23, 2012). In order to be clear, it should be the case where the data based on which the mistake of facts is based lacks external appearance, or it is evident that the establishment or the authenticity of its contents cannot be recognized objectively. If the defect can be clarified only when the data on factual relations are accurately examined (see, e.g., Supreme Court Decision 2003DuO203, Apr. 16, 204). Meanwhile, in a lawsuit seeking a return of the already paid tax amount by claiming the invalidity of the taxation disposition, the Plaintiff is liable to assert and prove the invalid reason (see, e., Supreme Court Decision 9DuO99, Mar. 23, 2000).

2) In the instant case:

In light of the above legal principles, the evidence submitted by the plaintiffs alone is insufficient to acknowledge that there is a significant and apparent defect in the disposition of this case. Rather, in full view of the purport of the argument as to Gap evidence Nos. 8-1, 2, and 9-14, the defendant died on May 18, 2007 and then the plaintiffs entered into an alteration contract with the parties to the contract of this case as the plaintiffs. The plaintiffs additionally paid OO won to Kim II on the premise that the contract of this case was scheduled to take place on October 2007. The issue of whether the plaintiffs' non-performance of the right of this case was an issue of non-performance of the right of this case's disposal of the hotel Nos. 209 against the non-party 1, 2009 against the non-party 2, who is the owner of the aboveO No. 99, the court below's judgment against the plaintiff's non-party 4.1, 2015.

Therefore, the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.