Cho-2015-China-1596 (Law No. 2016, 2016)

Pecuniary obligations are inherited to all co-inheritors in proportion to their statutory shares at the time of commencement of inheritance.

Pecuniary obligations are inherited to all co-inheritors in proportion to their statutory shares at the time of commencement of inheritance, so it cannot be deemed that the Plaintiff alone succeeded to the obligation.

Article 19 of the Inheritance Tax and Gift Tax Act (spouse’s Inheritance Deductions)

2016Guhap7885 Revocation of Disposition of Revocation of Inheritance Tax Imposition

OO

O Head of tax office

2017.01.24

2017.02.14

1. On December 1, 2014, the Defendant’s imposition of an inheritance tax OOO on the Plaintiff on December 1, 2014 that exceeds the OOO won shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. High AAAA (hereinafter referred to as "the decedent") died between the Plaintiff, the spouse, having BB, CCC, and DD as its child, and OO.O.O.O.

B. On October 2013, the Plaintiff voluntarily paid the OO won as inheritance tax by making the spouse’s active property to the Defendant as the OOO, the small property as the OO, and the spouse’s inheritance deduction as the OO, while filing the inheritance tax base return.

C. The Defendant: (a) deemed that the Plaintiff solely succeeded to the Defendant’s obligation of the Defendant’s loans to the EE EE loans (hereinafter “EE loans”) of the inheritee, and the Defendant: (b) imposed KRW OO on the Plaintiff, 200.O.O.O., on the ground that the Plaintiff omitted filing a return, omitted filing a return, or deducted the amount of the spouse deduction in excess of the amount; (c) omitted the inheritance tax from the taxable subject of taxation; and (d) imposed KRW OO on the Plaintiff on the Plaintiff (hereinafter “instant disposition”).

D. The plaintiff is dissatisfied with this and filed an appeal with the Tax Tribunal for 200O.O.O.O., and from the Tax Tribunal 200O.O., the plaintiff et al. deemed that the inheritors such as the plaintiff et al. succeeded to the EE loans jointly, and thus re-calculated the amount of the spouse deduction, and the amount of the additional tax on general non-reported and non-reported additional tax shall be corrected by applying the tax rate of the general non-reported additional tax (10%) respectively, and the remaining amount of the appeal was dismissed.

E. According to the above decision of the Tax Tribunal, the Defendant deemed that the heir, including the Plaintiff, jointly inherited the EE loans, and also changed the rate of additional tax and notified the reduction or exemption of the inheritance tax OO members. As a result, the Plaintiff became an OO member of the inheritance tax originally imposed.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, 10 evidence (including evidence with a provisional number; hereinafter the same shall apply), Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Defendant disposed of this case on the premise that the Plaintiff solely succeeded to the debt of this case, but this also succeeded jointly to the heir such as the Plaintiff. Thus, the instant disposition based on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In a case where the content of performance, such as a pecuniary obligation, is jointly inherited, such performance is naturally divided and reverted to the co-inheritors at the time of commencing the inheritance, which is naturally divided according to the statutory share of inheritance, so there is no room for division of inherited property. This legal doctrine also applies to the case where the obligation was borne by the decedent against one of the co-inheritors, and Article 1015 of the Civil Act, which stipulates the retroactive effect of division of inherited property, does not apply to such inheritance obligation even if there is an agreement among co-inheritors on division of inherited property (see, e.g., Supreme Court Decision 97Da809, Jun. 24, 1997)

On the other hand, the defendant does not dispute the existence of the debt of this case. The debt of this case was inherited at the same time as the debt of EE Loans, and as a matter of course, to all co-inheritors including the plaintiff, etc. according to their statutory shares in inheritance, and there is no evidence to deem that the plaintiff inherited the debt of this case solely (the agreement on the division of inherited property (Evidence A No. 4) does not mention the debt of this case, and even if it is assumed that there was an agreement between the co-inheritors to inherit the debt of this case independently as alleged by the defendant, it does not affect the inheritance relationship merely because it is the assumption that the plaintiff, as argued by the defendant, had agreed to inherit the debt of this case by himself)

2) Regarding the scope of revocation among the instant disposition, according to the foregoing evidence, when the Plaintiff deemed that the instant obligation was inherited by inheritance with other co-inheritors according to their respective statutory shares in inheritance, the reasonable tax amount can be recognized as an OOO. As such, the part exceeding the aforementioned legitimate tax amount among the instant disposition is unlawful, and thus revoked.

3. Conclusion

If so, the plaintiff's claim is justified.