Seoul Central District Court 201 Gohap5177 (02.03)

Since the distribution of the refund cannot be determined, the deposit for repayment is valid.

In the case of joint inheritance, any method of distributing a refund shall not be easily determined by the disposition authority in charge of tax administration. Therefore, the repayment deposit in the case of this case and the repayment deposit included in the mixed deposit in the case of this case shall be valid.

2012Na18016 Refund

KimAA 2 others

Korea

Seoul Central District Court Decision 2011Gahap5177 Decided February 23, 2012

July 18, 2012

September 26, 2012

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff KimA 00 won, and to the plaintiff KimB 000 won, and to the plaintiff KimCC 000 won and each of the above amounts, 5% per annum from January 1, 2011 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of full payment (the plaintiff reduced his claim in the trial).

1. Basic facts

A. Defendant’s imposition of inheritance tax and decision of reduction

1) On April 30, 2007, the deceased died on April 30, 2007, and the deceased's heir has the Park E, the spouse, the plaintiffs who are children, the KimF, and the KimGGG, and the deceased's heir who died around 1996, there are Park II, who are the spouse of the deceased Kim H, Kim J, KimJ, the KimK, and KimL (hereinafter referred to as "heirs and substitute inheritors").

2) On September 1, 2008, on the basis of the value of inherited property reported by co-inheritors after the deceased’s death, the Defendant imposed an inheritance tax imposition disposition ordering the co-inheritors to pay KRW 000 of inheritance tax by September 30, 2008 (hereinafter referred to as “first imposition disposition”). Accordingly, the co-inheritors paid KRW 00 of inheritance tax and additional dues from December 9, 2008 to May 29, 2009. The inheritance tax (including additional dues) paid by the co-inheritors are as follows.

3) After the first disposition, the Defendant conducted a separate investigation on the deceased’s inherited property. However, during that process, the heir of the deceased Kim H’s heir came to know that the deceased Kim H’s share in the deceased Kim H’s inherited property was reported as inherited property with respect to the real property located in the name of the Plaintiffs, KimGG and the deceased Kim H, and accordingly, the heir of the deceased Kim H came to know that the deceased’s share in the deceased Kim H was reported as inherited property. Accordingly, the remainder of the shares except the deceased Kim H’s share in the trust was deemed to have been trusted by the deceased, and the value of the shares was calculated by adding 00 won to the inherited property value, and on April 10, 2009, the inheritance tax imposition disposition (hereinafter “second disposition”) ordering the co-inheritors to additionally pay 00 won of inheritance tax until April 30, 2009 (hereinafter “the Defendant becomes the co-inheritors’s tax amount to be paid by reducing the additional paid KRW 00).

4) From May 20, 2009 to June 15, 2009, the Plaintiffs paid all inheritance tax (including additional dues) pursuant to the second imposition in their own name. In this regard, the amount of tax paid by the Plaintiffs is different.

5) After that, on November 3, 2009, co-inheritors filed a request for a national tax trial with the Tax Tribunal on the ground that the second imposition disposition is unfair. The Tax Tribunal did not separately determine the shares of the deceased Kim H, which were reported as inherited property at the beginning of the above real estate, and decided to accept part of the co-inheritors’ claims on November 4, 2010 on the ground that the shares of the remaining co-inheritors were not a donation of the deceased’s title trust. Accordingly, on November 1, 2010, the Defendant adjusted the total inheritance tax amount to be paid by co-inheritors at KRW 00, by reducing the total inheritance tax amount to be paid by co-inheritors at KRW 00, and the amount of tax to be paid by

1) The Defendant requested the co-inheritors to submit a written consent on refund pursuant to Article 51(3) of the Regulations on the Collection of National Tax Affairs while notifying the co-inheritors of the determination of refund amount in order to refund the amount of KRW 000 calculated by deducting the amount of KRW 000, which was corrected from the amount of KRW 000,000 (=00 won -00) and the amount of additional refund from the amount of KRW 00,00, and the amount of additional refund from the amount of KRW 1,00,000. However, the remaining co-inheritors refused to submit a written consent when they did not submit a written consent, or the Defendant did not pay the amount of refund only to Plaintiff KimA, and KimCC. Meanwhile, the Gangnam, among co-inheritors, was served on the Defendant with the provisional attachment decision (Seoul Central District Court 2010Kadan6927) and the provisional attachment decision on KRW 6927).

2) On January 25, 201, the Defendant deposited 000 won after deducting the amount provisionally seized among the instant refunds from refund money, additional refund money up to that time, and the deposit expenses, etc. from bank custody interest, on the ground that co-inheritors did not submit a written consent, and on 000 won after deducting the deposit expenses, etc. from the amount provisionally seized and the sum of the bank deposit interest on the amount provisionally seized, the Defendant deposited 100 won under the latter part of Article 487 of the Civil Act (hereinafter referred to as “the instant mixed deposit”) on the ground that the co-inheritors could not know the creditors of the refund amount, and on the ground that the lectureE provisionally seized it, 100 won (hereinafter referred to as “the instant mixed deposit”) under the latter part of Article 487 of the Civil Act and the execution deposit under Articles 291 and 248(1) of the Civil Execution Act.

[Basis of Recognition] The non-contentious facts, Gap evidence 1 to 4, and Eul evidence 1 to 7 (including able number), and the whole purport of the pleading

2. The parties' assertion on the cause of the claim;

A. The plaintiffs' assertion

1) According to Article 3(1) and (4) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax Act”) and Article 2-2(2) of the Enforcement Decree of the same Act, an inheritor is jointly and severally liable to pay within the limits of his/her own inherited property, and the above inherited property is limited to the total amount of assets acquired by his/her own inheritance and the amount calculated by deducting the total amount of liabilities and the respective inheritance taxes. Thus, the total amount of taxes to be jointly and severally liable for each of the Plaintiffs are limited to the amount of total assets acquired

2) The total amount of assets received by the plaintiffs due to their inheritance is KRW 000, total amount of total assets is KRW 000, and the amount calculated by deducting each total amount of total liabilities from the above total amount of assets is KRW 000, each of the above total amount of assets (=00,000). The amount calculated by deducting each of the above amounts from the inheritance tax and additional dues paid by the plaintiffs constitutes inheritance tax erroneously paid. On the other hand, in calculating the above amount of inheritance tax paid by the plaintiffs, the inheritance tax paid by the plaintiffs should be calculated as of December 31, 2010, KRW 00, KRW 00, and KRW 00, and KRW 00, and KRW 00,000, and KRW 00,000, and KRW 10,000,000, and KRW 30,000,000,000,000,000,000,000,000.

3) Nevertheless, the defendant has made a payment deposit in accordance with the provision on the collection of national tax affairs, which is merely a mere administrative work guidelines, and since the payment deposit in this case is null and void because it does not meet the requirements for the payment deposit, the defendant is liable to pay the inheritance tax overpaid

4) If the Plaintiffs’ payment of inheritance tax by agreement among co-inheritors is interpreted as one payment on behalf of all co-inheritors, and the refund money to be paid to co-inheritors should also be paid to the representatives of co-inheritors.

B. Defendant’s assertion

Although the refund occurred, in this case, some of the persons jointly and severally liable for payment pays the most of the amount of the tax, and the amount of the refund has been reduced by some of the total amount of the tax, and in this case, it is unclear who the creditor of the refund is or who was the creditor of the refund, making a repayment deposit pursuant to the latter part of Article 487 of the

3. Determination

A. Contents of obligations related to inheritance tax by co-inheritors

Article 18(1) of the former Inheritance Tax Act provides that an inheritor is 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 inheritor among inherited property imposed pursuant to the Inheritance Tax Act, and Article 18(4) provides that an inheritor is jointly and severally liable to pay inheritance tax within the limit of the property received or to be received by each inheritor. According to this, each co-inheritors is liable to pay inheritance tax according to the proportion prescribed by the Presidential Decree based on the property received or to be received by each inheritor among the total amount of inheritance calculated based on the taxable value of the inherited property of each co-inheritors, and is jointly and severally liable to pay inheritance tax for other co-inheritors within the limits of the property they received or to receive (see Supreme Court Decision 98Du9530, Nov. 27, 2001). Accordingly, if one co-inheritors has paid inheritance tax in excess of his own own tax liability, such excessive portion of inheritance tax shall be valid as a joint and several obligor, and even if the obligor is jointly and severally liable to pay the property exceeding his own obligation.

(b)the distribution of refunds in joint inheritance;

(1) Under Article 52 Subparag. 1 of the former Framework Act on National Taxes (amended by Act No. 10219, Mar. 31, 2010), when the amount of refund money was calculated based on the above legal principles, the amount of refund money should be refunded to anyone among the co-inheritors. Under Article 52 Subparag. 1 of the former Act, if the national tax refund was paid in two or more installments, the amount calculated by adding the interest rate prescribed by the Presidential Decree from the date following the last day of payment can be established if national tax was appropriated for repayment of national tax, and if payment was made after it was appropriated for payment of national tax, the amount of refund money should be refunded to those co-inheritors at the time of 00 won, and if the amount of refund money to be paid by the defendant is more than the first half of the total amount of refund money to those co-inheritors, the amount of refund money should be paid to those co-inheritors at the time of 200, and if the remaining amount of refund money would be less than the last one of the co-inheritors’s.

C. The latter part of Article 487 of the Civil Act where a person performing the obligation is objectively unable to identify the creditor without negligence refers to the case where the creditor or the person receiving the repayment exists, but even if the debtor fulfills his due care as a good manager, it is impossible to identify who is the creditor (see, e.g., Supreme Court Decision 87Meu3118, Dec. 20, 198), and as seen above, it is a matter of which the head of a tax office under the jurisdiction of the defendant in charge of tax administration can not easily determine to whom the refund should be distributed in any way in the joint inheritance as seen above. Thus, the mixed deposit of this case is the

All of the repayment deposits included shall be valid (the plaintiff has no dispute over the validity of the execution deposit out of the mixed deposit in this case).

4. Conclusion

Then, the plaintiffs' claims in this case premised on the invalidity of payment deposit made by the defendant are dismissed due to the absence of two grounds, and the judgment of the court of first instance is just in this conclusion, and the plaintiffs' appeals against the defendant are dismissed. It is so decided as per Disposition.