The early 2013-4514

This disposition is legitimate to impose the inheritance tax on the basis of the court's ruling on the previous disposition of imposing the inheritance tax concerning the name of failure to use the property.

This disposition on which the inheritance tax is imposed after re-calculated according to the court ruling on the previous disposition of imposing the inheritance tax related to the name of failure to use is justifiable, but where it is difficult for a taxpayer to regard that he/she has violated the payment deadline substantially, or where there is a justifiable reason that makes it difficult for a taxpayer to deal with such violation due to the fault

Article 15 of the Inheritance Tax and Gift Tax Act (Presumption of Inheritance, etc. before Commencement of Inheritance) Article 47-4 of the Framework Act on National Taxes

2014Guhap2676 Revocation, etc. of Disposition of Revocation of Inheritance Tax Imposition

IsaA

BB Director of the Tax Office

Seoul Administrative Court Decision 2014Guhap2676 decided October 31, 2014

September 5, 2014

October 31, 2014

1. On February 19, 2004, the part that exceeds KRW 00,000,000, out of the imposition of an additional tax for unfaithful payment on inheritance tax on February 19, 2004 against the Plaintiff on July 15, 2013, is revoked. 2. The remainder of the Plaintiff’s remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of KRW 00,00,000 of inheritance tax for the year 2004 against the Plaintiff on July 15, 2013, and each attachment disposition that the Defendant rendered against the Plaintiff on July 17, 2013 and October 8, 2013 against the Gangnam-gu Seoul, Seoul, Seoul, △△△△△, Group 1 apartment complex, 00,000, respectively, shall be revoked.

1. Details of the disposition;

A. The Plaintiff is an adopted child of No.A. (hereinafter referred to as “the deceased”) of the deceased deceased on February 19, 2004, and is the co-inheritors of the deceased.

B. On April 30, 2009, thisB reported on February 19, 2004 the taxable value of inherited property as KRW 00,000,000,000,000, and paid KRW 00,000,00 which the principal bears among them.

C. As a result of the investigation on the deceased’s inherited property, the Defendant confirmed that some of the inherited property, including the disposal property whose wife was unknown prior to the commencement date of inheritance, was omitted, as follows, and decided on August 24, 2010 on August 24, 2010 on the Plaintiff’s inheritance tax of KRW 00,000,000 (including additional tax of KRW 00,000,000,000, the Plaintiff’s share of KRW 000,000,000, and the joint and several tax obligor’s share of KRW 00,000,000). (hereinafter “the initial inheritance tax disposition”).

Value of the inherited property ①

0,000,000,000

Property, etc., disposed prior to the commencement date ②

00,000,000 won

Additional Amount of donated property Ⅲ

00,000,000 won

No.4

00,000,000 won

p. public trust value No.

00,000,000 won

Taxable value of inherited property (1+2 +3-No.4-)

0,000,000,000

Additional Tax

00,000,000 won

Amount of tax notified after deduction

00,000,000 won

라. 원고는 2010. 9. 15. 피고에게 위 상속세 중 자신의 부담액 000,000,000원을 납부하였으나 이BB은 자신의 부담액 000,000,000원을 체납하였고, 이에 피고는 2013.3. 6. 원고 소유의 서울 강남구 △△로 000 주공1단지아파트 00동 000호(이하 'ㅇㅇㅇ아파트'라 한다)를 압류하였다.

E. The Plaintiff filed a lawsuit against the Defendant seeking the revocation of the initial inheritance tax disposition and the attachment disposition against the 00 apartment (2012Guhap10918). The Defendant, while the lawsuit is pending, calculated again the taxable value, etc. of the inherited property on April 25, 2013, and corrected the amount of KRW 00,000,000 among the initial inheritance disposition (a total amount of public charges, KRW 00,000,000,000, and KRW 0,000,000, as a mutual aid amount).

F. On June 13, 2013, the Seoul Administrative Court rendered a judgment revoking the disposition of imposition of KRW 000,000,000 of the remaining inheritance tax after the decedent’s reduction as above in the first disposition of inheritance tax, and the said judgment became final and conclusive on July 9, 2013 (hereinafter referred to as “prior judgment”) and became final and conclusive on July 9, 2013 (hereinafter referred to as “prior judgment”).

G. In accordance with the purport of the preceding judgment, the Defendant: (a) calculated the amount of tax calculated by deducting KRW 000,000 from the added amount of the property, etc., prior to the date of commencing the inheritance; and (b) notified the Plaintiff on July 15, 2013 of the inheritance tax amounting to KRW 00,000,000,00 in inheritance tax inherited on February 19, 204 (including additional tax for unfaithful 00,000,000; hereinafter “instant taxation”).

Value of the inherited property ①

0,000,000,000

Property, etc., disposed prior to the commencement date ②

00,000,000 won

Additional Amount of donated property Ⅲ

00,000,000 won

No.4

00,000,000 won

p. public trust value No.

00,000,000 won

Taxable value of inherited property (1+2 +3-No.4-)

0,000,000,000

Inheritance Tax Decision Amount

00,000,000 won

Additional Dues

00,000,000 won

Amount of tax notified after deduction

00,000,000 won

H. In addition, on July 16, 2013, the Defendant cancelled the existing seizure of 00 apartment units on July 16, 2013, and seized 00 apartment units on July 17, 2013 and October 8, 201 of the same year to preserve the taxation claims arising from the instant taxation disposition (hereinafter collectively referred to as the “instant seizure disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Gap evidence No. 8, Eul evidence Nos. 1, 2 and 3 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

A. The argument regarding the instant taxation disposition

1) The applicable method under Article 15(1) of the Inheritance Tax and Gift Tax Act

A) Article 15(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7580, Jul. 13, 2005; hereinafter the same shall apply) provides that the taxable value of inherited property shall be included in the taxable value of inherited property only where the disposed property is calculated by type and KRW 200,000,000,00, out of the amount withdrawn from the bank account of the deceased, and the place of use is unclear. However, in order to maintain equity with the case where the disposed property falls short of KRW 200,000,000,000, the taxable value of inherited property should be deducted from the disposal property included in the taxable value of inherited property.

B) In addition, the Deceased supported the East Rod who had a disability for the two years prior to the death, and in general, it is practically impossible to explain the use of cash for the living expenses. As such, it should also be excluded from the disposal property prior to the date of commencing the inheritance, which is included in the tax base, as well as the amount of KRW 00,000 (2-year family living expenses as of 2 years’ notification by the Ministry of Health and Welfare = 572,058 x 24 months x 150%) in proportion to the minimum cost of living of two family members.

(ii) a deduction of KRW 000,000,000 in the amount of debt performance;

On February 3, 2003, the deceased purchased the BB AAAdong 1687 00 000 000 000 000 dong (hereinafter referred to as the “○○ apartment”) from the J on February 3, 2003, and acquired the existing collateral obligation and repaid the secured obligation amount on March 28, 2003. Therefore, since the Plaintiff’s money withdrawn within one month from the date of repayment is clearly used, it should be excluded from the disposal property prior to the date of commencing the inheritance, which is included in the tax base.

3) Excessive imposition of additional dues for unfaithful payment

In rendering the instant taxation, the Defendant imposed an additional tax for the period from February 1, 2009 to July 15, 2013, which was the date of the preceding taxation, on the amount of KRW 00,000,000 from February 1, 2009 according to the previous taxation. However, the Plaintiff already paid KRW 15.00,000,000 as of September 15, 2010 according to the previous taxation, and thus, the additional tax for unfaithful payment should be imposed only for the period of 592 days from the said payment date.

B. As to the attachment disposition of this case

On May 25, 2010, 200 won of the inheritance tax to be borne by the Defendant shall be the delinquent tax amount, and on May 25, 2010, B seized the shares of 00 apartment 1/2 inherited from the Deceased. At the time, the said shares were under a compulsory auction procedure for the said shares, and the Defendant was well aware of this fact upon being notified, but did not request the delivery by the deadline for demand for distribution. As a result, the Defendant did not receive any dividends during the said compulsory auction procedure. Accordingly, the Plaintiff was exempted from liability for repayment of KRW 00,000 under Articles 485 and 481 of the Civil Act. Accordingly, the Plaintiff already paid KRW 00,000,000 according to the instant taxation, and the attachment disposition of this case was unlawful since the Plaintiff had been exempted from liability for the remaining tax amount to be borne by the Plaintiff.

3. Relevant statutes;

Attached Form is as shown in the attached Form.

4. Determination

A. Determination on the instant taxation disposition

1) The applicable method under Article 15(1) of the Inheritance Tax and Gift Tax Act

Article 15(1)1 and (3) of the Inheritance Tax and Gift Tax Act and Article 11 of the Enforcement Decree thereof provide that where an ancestor’s cash, deposits, and securities withdrawn within one year prior to the commencement date of inheritance are more than 200 million won and the purpose of use is objectively unclear, such as where the other party to the transaction is not verified, an heir shall be presumed to have inherited the property, and thus, the heir shall be included in the taxable value of inherited property. This provision provides for the burden of proof to prevent unfair reduction of inheritance tax by donation or inheritance in cash to an heir who is not easy to capture taxation data (see, e.g., Supreme Court Decision 97Nu1676, Jun. 23, 200). Furthermore, Article 11(4) of the Enforcement Decree provides that where an heir proves the purpose of use of the entire amount of money withdrawn within the scope of 10 billion won, the heir’s assertion that the amount of money withdrawn should not be included in the taxable value of inherited property can not be accepted. This also reflects the heir’s determination of the total amount of 100 billion won.

2) Whether the debt repayment amount of KRW 000,000 is deducted or not

The deceased purchased a Seocho apartment from February 3, 2003, and agreed to deduct the amount from the purchase price by succeeding to the secured debt (the maximum debt amount, 00,000,000 won) existing as the collateral right established in the past from the purchase price. Accordingly, on March 28, 2003, the deceased shall fully repay the principal and interest of the secured debt and cancelled the registration of the establishment of a mortgage on April 3, 2003. The deceased’s withdrawal of the above secured debt amount from February 27, 2003 to March 12, 200 of the same year cannot be readily acknowledged by taking account of the following facts: (a) it is difficult to acknowledge that the amount of the secured debt was paid by the deceased from February 27, 2003 to June 12, 200; and (b) it is difficult to recognize that the amount of the debt was paid by the deceased with the entire evidence as to the source of the secured debt payment, and (c) it is not reasonable to recognize that the amount was paid by the deceased’s deposit.

(iii) the imposition period of the penalty tax in bad faith;

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, where a taxpayer violates various duties prescribed by the Act without justifiable grounds, administrative sanctions imposed as prescribed by the individual tax law may not be imposed (see Supreme Court Decision 2003Du13632, Jan. 27, 2005). Additional tax is also levied on a taxpayer who fails to pay national taxes by the due date prescribed by the tax law pursuant to Article 47-4(1)1 of the Framework Act on National Taxes, so it is difficult for the taxpayer to be deemed that the taxpayer has violated the tax payment period substantially, or if there are justifiable reasons making it difficult to see such violation due to the taxpayer’s fault. The Defendant first imposition of additional tax on the Plaintiff on the grounds of inheritance commenced on Feb. 19, 204; the Plaintiff raised a lawsuit seeking revocation; and the Defendant rendered a new disposition of imposition of inheritance tax for the period of 100 days prior to the first imposition of inheritance tax by 200 days prior to the first imposition of inheritance tax on the Plaintiff.

According to the above facts, even though the original disposition of inheritance tax was revoked by a prior judgment, it is identical to the original disposition of this case in that it was based on the deceased’s death. However, as the instant disposition of taxation was rendered to the effect that the amount of the taxable value of the inheritance which was the initial premise of the disposition of inheritance tax is reduced, it may be deemed as a result similar to that of the initial disposition of reduction. Therefore, as long as the Plaintiff paid KRW 00,000 on September 15, 2010 in cooperation with the initial disposition of inheritance tax, it is difficult to deem that the pertinent tax disposition violated the due date for payment of inheritance tax. If the Plaintiff imposed all additional 00,000,000,000 won for 00,0000 won, which was the Defendant’s erroneous payment of the taxable value of inheritance tax, without disregarding such circumstances, the Plaintiff could not be deemed to have imposed an additional tax for additional 00,000 won due to the lack of sufficient data pertaining to the preceding judgment, and thus, it cannot be deemed that the Plaintiff was obliged to pay additional tax for additional reasons.

B. Judgment on the attachment disposition of this case

In light of the aforementioned legal principles, the Plaintiff asserts that, under Articles 485 and 481 of the Civil Act, the Plaintiff was exempted from liability for repayment of KRW 00,00,00, which is the secured debt of the seizure disposition, since the Defendant’s joint and several tax obligor did not request the delivery of the said immovable property at the time. The Plaintiff’s assertion that, in light of the overall purport of the pleadings, the Defendant was not entitled to reimbursement of KRW 57,242,897, out of the total amount of inheritance tax to be borne by B pursuant to the original disposition of inheritance tax, the Defendant’s joint and several tax obligor’s joint and several tax obligor’s share of KRW 1/2 on May 25, 2010 is not entitled to reimbursement of KRW 20,000,00,000,000,000 as the secured debt of KRW 20,000,000,000,000,000,000.

Ultimately, the disposition of imposition of additional tax 00,000,000 won out of the instant taxation disposition is unlawful within the scope exceeding KRW 00,000,000, and thus, the remaining tax disposition and the pressure of this case are revoked.

All dispositions are legitimate, and there is no violation of law as asserted by the plaintiff.

5. Conclusion

The plaintiff's claim is accepted on the grounds of the above recognition scope, and the remaining claims are dismissed without any justifiable reason. It is so decided as per Disposition.