Cho High Court Decision 201Do3009 ( December 21, 2011)

The principal place of living of the deceased is deemed overseas and constitutes a non-resident.

In light of the fact that: (a) the deceased illegally entered the Republic of Korea; (b) had been living together with his/her family while staying in Canada for activities of gathering local teachers; and (c) after departure from Korea for the purpose of treating rare diseases, the deceased has been receiving medical treatment abroad; and (d) the deceased has caused death, the inheritance tax disposition deemed as a non-resident is lawful.

2012Guhap2375 Revocation of Disposition of Levying Inheritance Tax

New XX 2 others

Gangwon-gu Director of the District Office

October 9, 2012

November 8, 2012

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s disposition of imposition of KRW 000,000, which was made against the Plaintiffs on June 13, 2012, is revoked.

1. Details of the disposition;

A. On November 30, 2007, the plaintiffs and the largestAB (hereinafter referred to as "the deceased") were successors of the deceased deceased deceased deceased on July 12, 2007, upon reporting inheritance tax to the defendant on November 30, 2007, the deceased evaluated the deceased's inherited property as a total of KRW 000 won and, in addition to the basic deduction, those who have either a domicile in the country or have a domicile in the country for not less than one year. In other words, the deceased's inheritance deduction [Article 19 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 201; hereinafter referred to as "former Inheritance Tax and Gift Tax Act"), other personal deductions (Article 20 (1) 1 of the same Act), a lump sum deduction (Article 21 (1) of the same Act) and financial property (Article 22 (1) of the same Act) and the inheritance deduction (Article 22 (1) of the same Act).

B. The first Defendant: (a) deemed the deceased as a resident and received the details reported by the Plaintiffs and the largestA; (b) however, the Seoul Regional Tax Office issued an order to take measures to correct inheritance tax by denying the spouse’s basic inheritance tax deduction, such as inheritance deduction, other personal deductions, a lump sum deduction, and a financial property inheritance deduction, on the ground that the deceased constitutes a non-resident; (c) as a result, the deceased’s regular comprehensive audit against the Defendant (from June 28, 2010 to July 15, 2010). The Seoul Regional Tax Office issued an order to take measures to correct inheritance tax by denying the inheritance tax deduction, namely, a spouse’s inheritance deduction, other personal deductions, a lump sum deduction, and a financial property inheritance deduction; and (d) the Defendant, on February 15, 2011, issued and notified the Plaintiffs and the largestA

C. The Plaintiffs appealed and filed an appeal with the Tax Tribunal on August 16, 201, but received a decision of dismissal on December 21, 201 and filed the instant lawsuit on January 19, 2012.

D. Meanwhile, on June 13, 2012, the Defendant: (a) notified the Plaintiffs on June 13, 2012 during the instant lawsuit, of KRW 00 of inheritance tax (the details of calculation of the tax base and tax amount of inheritance tax, inheritance tax and joint and several tax liability to be paid by inheritor; hereinafter referred to as “instant disposition”) by designating only the Plaintiffs as inheritors, except for the heirs, in order to recover the procedural defects in the inheritance tax payment notice, where the largestA had already been dead (the death on August 12, 2010).

E. On August 1, 2012, the Plaintiffs sought revocation of the disposition imposing inheritance tax of KRW 000 as of June 13, 2012 by the Defendant, and subsequently amended the purport of the claim.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 6, 8, 13, 20 evidence, Eul 3 evidence (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Around 2004, the deceased, after entering the Republic of Korea at the time of having a mind to adjust the immigration life in Canada and permanently return to the Republic of Korea from time to time, entered the site of a church for booming activities, the deceased left Canada for medical treatment on December 25, 2005. The deceased purchased an son for the purpose of residing in the Republic of Korea after departure from the Republic of Korea from the Republic of Korea from the Republic of Korea through Seoyang-gu, Busan Metropolitan City, 2579, 701, 801 (hereinafter referred to as the “the apartment of this case”), but died on July 12, 2007. Ultimately, in the case of the deceased, the deceased was a family member who has a right of permanent residence in the Republic of Korea, and the deceased was deemed to have been residing in the Republic of Korea mainly by entering the Republic of Korea in view of his occupation and property status, and thus, the disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On October 17, 1983, the Deceased received wood trees from the Seoul Anniverse Association at the Seoul Anniverse Association at the Seoul Anniverse Association, the Deceased reported emigration to the Republic of Korea on December 8, 1986 with his spouse (LA) and their children (Plaintiffs) on December 8, 1986, and acquired the permanent residence by departing from Canada for the purpose of holding overseas Koreans.

2) Since 1987, the details of residence of the deceased in the Republic of Korea are as follows. The deceased delivered the O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-

3) On December 21, 1987, the deceased, on December 21, 1987, sold Mudong 901, 110 Dong 10-dong 104, and around October 2005, the deceased was expropriated land owned from February 1, 197, Gangdong-gu Seoul Metropolitan Government Y 317-1, and managed the compensation for expropriation through a domestic financial account (including a new bank, sect bank).

4) On December 25, 2005, the Deceased was determined to be unable to provide an operational treatment in Korea due to the outbreak of 'cerebral cerebral cerebral cerebral Organisms’ in 2005, and left Canada for medical treatment.

5) On September 15, 2006, when he was living in Canada, he purchased the apartment of this case from Nonparty JinD through Plaintiff JinD through Plaintiff JinD on September 15, 2006, and at the time of death, there was financial assets (00 won) other than the apartment of this case (00 won) in addition to the property of the deceased’s domestic country.

6) On August 12, 2010, LA was living in Canada mainly after the death of the deceased, and died in Canada’s Canadian Republic of Colombia on August 12, 2010

7) On July 18, 1997, the Plaintiff’s son, the Deceased, married with Nonparty KimE and has 1 South son. Since the marriage, the Plaintiff has been residing in the Republic of Korea continuously, and KimE is employed as a director of the management team in 1998 after entering Y of the Stock Companies in 198.

8) On December 4, 2000, Plaintiff CF, a female of the deceased, had 1 South and North Korea by marriage with Kim J on December 4, 2000. From November 23, 2007, the Government of the Republic of Korea from the date of the government from the date of November 23, 2007, is residing in XX apartment 15-52 Dong 302, and the Plaintiff CF, a female of the deceased, is residing in the Republic of Korea of Canada’s Brazil on December 9, 2009 by marriage with Nonparty Dh on December 9, 2009.

[Reasons for Recognition] Facts without dispute, Gap 2, 3, 5, 6, 7, 8, 9, 11, 13, 14, 17, 18, 19, Eul's testimony, and the purport of the whole pleadings

D. Determination

1) The former Inheritance Tax and Gift Tax Act recognizes the spouse’s inheritance deduction (Article 18(1)), other personal deductions (Article 19) and the inheritance deduction (Article 20(1)1), the financial property inheritance deduction (Article 21(1)4), and the financial property inheritance deduction (Article 22(1)5) from the taxable value of the inherited property in cases where the death of a resident or a non-resident is commenced due to the death of the resident (Article 18(1)), in addition to the basic deduction, only when the resident dies (Article 19(2). The issue is whether the deceased can be viewed as a resident under Article 1(1)1 of the former Inheritance Tax and Gift Tax Act is whether or not.

(2) According to Article 1(1)1 of the former Inheritance Tax and Gift Tax Act, if a person who had his domicile in the Republic of Korea or had been deceased for more than one year (hereinafter referred to as “resident”) dies, the above provision provides that the resident’s inheritance tax shall be imposed on all the deceased’s inherited property. Article 2(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 21292 of Feb. 4, 2009) provides that the resident’s right to live in Korea shall be determined on the basis of the non-resident’s permanent residence in Korea for the purpose of 6 years or longer, and that the non-resident’s domicile and non-resident’s domicile and non-resident’s non-resident life may not be deemed to be within the Republic of Korea for the purpose of 1 year or longer, and that the non-resident’s domicile and non-resident’s domicile and non-resident’s non-resident status need to be determined on the basis of the objective facts of the non-resident’s living in Korea.

3. Conclusion

Since the plaintiffs' claims are without merit, all of them are dismissed.