Whether the surviving son shall be deemed as the inherited property the balance that the deceased son did not receive after the transfer of the commercial building

When selling a commercial building, the total amount of principal and interest borrowed from the transferee shall be determined as the debt for borrowing, and the amount set off on an equal amount between the purchase price claim and the purchase price claim to be received from the transferee, so it shall not be deemed as the property inherited in cash.

Article 1 of the Inheritance Tax and Gift Tax Act

1. The part of the disposition imposing KRW 60,455,650 on the Plaintiff on February 10, 2003, which the Defendant imposed on the Plaintiff on October 22, 2004, which exceeds KRW 22,615,265, is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 40% is borne by the Plaintiff, and the remainder 60% is borne by the Defendant, respectively.

The Defendant’s disposition of imposition of KRW 60,455,650 on February 10, 2003 against the Plaintiff on October 22, 2004 is revoked.

1. Details of the disposition;

On September 25, 2002, ○○○○○○○○○○○○○○○○○, one of its own ownership, sold the commercial building (hereinafter “the commercial building in this case”) at KRW 1.72 billion to Do○○○○○○○, Seoul, and died on February 10, 2003, and the mother was the heir of Y○○○. On October 22, 2004, on the ground that on the grounds that on October 22, 2004, ○○○ was not subject to Do○○○○○○○, one of the decedent’s property, the Defendant deemed the remainder of the sales amount to be the cash inherited property of Y○○○○, a decedent, and added it to inherited property, imposed KRW 60,455,640,00 on the Plaintiff” as indicated in the column of “instant disposition.

[Ground of recognition] Evidence Nos. 1, 2-1, 1-8 of evidence No. 2, 2-1-8 of evidence No. 2, 1-2 of evidence No. 2-1, 2, and 3 of evidence No. 2

2. Whether the disposition is lawful;

A. The parties' assertion

(1) Defendant’s assertion

(a)The amount of KRW 260,000,000,000,000,000,000,000,000 won, which was lent to ○○○○, was a large amount of exchange and exchange, and there is no evidence to prove it and evidence of borrowing, even though it was traded by account transfer and check, etc., and it cannot be deemed that there was no reason to borrow from ○○, in view of the fact that ○○ had a considerable real

(B) On February 203, 200, when the Plaintiff leased ○○ apartment at ○○○○○○○○○○○○○○○○, Seoul, and around February 2, 2003, the Plaintiff withdrawn and paid KRW 280 million from his own account and paid the said money. The said money repaid KRW 292,00,000,000, which was not paid to ○○○○, as the Plaintiff’s pre-paid loan.

(2)The plaintiff's assertion

In renting ○○○○○○○○○○ apartment (hereinafter “instant apartment”) located on ○○○○○○○, ○○○○○○○○○○○○○, Seoul, ○○○○○○○○○○, borrowed KRW 110 million from Do○○○, and again borrowed KRW 150 million from Do○○○ when purchasing the instant apartment. When selling the instant apartment, Do○○○○, Do○○○, by adding interest to KRW 260 million, the principal borrowed from Do○○○○, 292 million, and set off interest on KRW 292 million from the amount equal to the purchase price claim to be received from Do○○○○, and thus, the said amount should not be inherited by the Plaintiff. Therefore, as the sales price claim against Do○○, set off KRW 290 million,000,000,000, which was set off against the sales price claim against Do○○○, the Defendant’s disposition of this case ought to be revoked.

(b) Related statutes;

[Inheritance Tax and Gift Tax Act]

Ο 제1조상속세 과세대상

(1) In case where, owing to an inheritance [including a testamentary gift, a donation becoming effective due to the death of a donor (including the relevant donation in case where a donor dies during the performance of the donated debts under Article 14 (1) 3; hereinafter the same shall apply), and a distribution of inherited property to a special relative under the provisions of Article 1057-2 of the Civil Act; hereinafter the same shall apply], there exists inherited property falling under one of the following subparagraphs as of the commencement date of inheritance (in case inheritance commences due to an adjudication of disappearance, referring to the adjudication date of disappearance; hereinafter the same shall apply),

1. In cases of the death of a person who has established a domicile in the Republic of Korea or has established a temporary domicile in the Republic of Korea for not less than one year (hereinafter referred to as a "resident"), all of the resident's inherited property (including property bequeathed by an ancestor and donated property becoming effective due to the death

Ο 제7조 상속재산의 범위

(1) The inherited property under Article 1 shall include the property belonging to the inheritee, which is all articles having economic value capable of realization into money and all de facto or de facto rights having property value.

(2) Of the inherited property under paragraph (1), those exclusively belonging to the deceased and cease to exist due to the death of the inheritee shall be excluded.

(c) Fact of recognition;

(1) The Plaintiff had five sons in 2 South and North Korea under the chain, but Y○ was unmarried as the Plaintiff’s head of the city, and Y○ was the Plaintiff’s her husband (her husband of YO).

(2) On May 23, 1996, although ○○ was suffering from disease of sea species, but she leased and resided together with the Plaintiff the instant apartment on May 23, 1996 due to the aggravation of her disease. At the time, ○○ entered into a lease contract on behalf of Y○○, because she was unable to move freely due to heavy species of water and so ○○ entered into a lease contract on behalf of Y○○, and Y○○ borrowed KRW 10 million as the lease deposit from Y○○, but ○○ directly paid the lease deposit to the lessor without going through Y○○○, so there is no financial data such as account transfer and check between Y○ and Y○○.

(3) The owner of the apartment of this case planned to move overseas to sell the apartment of this case, and it did not sell it easily, and literature ○○○ delegated the right to dispose of the apartment of this case to ○○○○ and left the immigration. On February 2001, ○○○ concluded a sales contract with the agent door ○○ and the apartment of this case with KRW 260 million (including KRW 110,000,000,000,000,000, which was already already paid to ○○○○○○, for the reason that the 150,000,000,000,000 won was no more than 30,000,000,000 won, and 15,000,000,000,000 won was no more than 3,000,0000,000,000 won out of 10,000,000 won.

(4) After doing so, on April 15, 2001, the Yellow ○○ prepared a letter of intent to pay the sum of KRW 260,000,000 and interest of the borrowed money from the door-○○ on April 15, 200 and delivered it to the door-○○○.

(5) Subsequent to that, yellow ○○ requested ○○ to purchase the instant commercial building in order to cover the medical expenses and living expenses. On July 26, 2002, ○○○○ requested the purchase of the instant commercial building. The two persons accepted a request for the purchase of ○○○○. 1.72 billion won was determined as the purchase price, ② ○○○ received lease deposit amounting to KRW 678 billion, and agreed to deduct the principal and interest amounting to KRW 260 million borrowed from ○○○, and ③ ○○○ agreed to set off the amount of principal and interest amounting to KRW 292 million,000,000,000,000 from the purchase price. ○○○○○○ apartment ○○○ apartment ○○ ○○ ○○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 2.

(6) After the death of ○○○○○○○○○○, 1.3 billion old (15.3. 15. 1. 1. 00 billion won), the Plaintiff withdrawn KRW 30 billion from KRW 70 billion on 14. 7 billion on 200,000,000 on 300,000,000,000 won, and 300,000,000 won on 200,000,000 won on 30,000,000,000 won on 1. 70,000,000 won on 20,000,000 won on 30,000 won on 10,000,000 won on 30,000,000 won on 14,000 won on 20,000 won on 203,00 won on 200,00 won on 203.

[Grounds for recognition] Gap evidence 3-3, Gap evidence 5-1-4, Gap evidence 5-13, Gap evidence 16-18, Eul evidence 4-10, and the purport of the whole pleadings

D. Determination

(1) According to the above facts, in selling the commercial building of this case to literature ○○, the Defendant’s disposition of this case imposing inheritance tax by deeming the above money as inherited property is unlawful, on the ground that: (a) the amount of principal and interest borrowed from literature ○○ as the loan obligation was set aside as KRW 292 million; and (b) the said money was set off on an equal amount with the purchase price claim to be received from literature ○○; and (c) the said money cannot be deemed as the cash inherited property of Yellow○; (d) the said money is not the property inherited by the Plaintiff; and (e) the said money is not the property inherited by the Plaintiff.

(2) Furthermore, as in the item column of “justifiable tax amount” in the separate sheet for calculation of tax amount, the total inheritance tax amount is KRW 22,615,265, such as the statement in the separate sheet for calculation of tax amount. Thus, the portion exceeding KRW 22,615,265 of the instant disposition should be revoked as it is unlawful.

4. Conclusion

If so, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are not accepted due to the lack of reasons.