[1] Whether recognizing a different amount of deduction of inheritance tax amount without a party's assertion violates the principle of pleading (negative)

[2] Method of calculating deduction amount of inheritance tax declared

[1] Article 26 of the Administrative Litigation Act provides that "the court may, if deemed necessary, conduct an ex officio examination of evidence, and determine the facts that the parties did not assert." Thus, in the administrative litigation, the court may ex officio determine ex officio the facts that the parties did not assert clearly, based on the materials indicated in the record, if deemed necessary. Although the parties did not dispute in the lawsuit of revocation of disposition imposing inheritance tax, it is just that the court examines and determines the amount of deduction of the amount of inheritance tax based on the materials presented in the record, and there is no violation of the principle of pleading.

[2] Article 20-2 (1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) provides that 10/100 of the amount calculated by deducting the amount of deduction or exemption from the amount of deduction or exemption from the amount calculated by multiplying the tax rate under Article 14 from the tax base of the reported inherited property shall be deducted from the inheritance tax amount. Article 6620-2 (1) of the former General Rules of the Inheritance Tax Act (amended by Act No. 4620-2 of Apr. 8, 1994) provides that "the tax base of the reported inherited property" means the amount calculated by the following formula. "The tax base of the reported inherited property 】 the total appraised value of the inherited property 】 the total appraised value of the reported inherited property / the total appraised value of the inherited property / the total appraised value of the reported inherited property. Thus, the tax base of the reported inherited property reported under Article 20-2 (1) of the Act refers to the legitimate valuation value of the reported inherited property.

[1] Article 26 of the Administrative Litigation Act, Article 20-2 (1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) / [2] Article 20-2 (1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993), Article 6620-2 (1) of the former General Rules of the Inheritance Tax Act (amended by Act No. 4662 of Apr. 8, 1994)

[1] Supreme Court Decision 92Nu3199 delivered on July 10, 1992 (Gong1992, 130), Supreme Court Decision 94Nu4820 delivered on October 11, 1994 (Gong1994Ha, 3014), Supreme Court Decision 94Nu5069 delivered on February 14, 1995 (Gong195Sang, 1345) / [2] Supreme Court Decision 96Nu877 delivered on May 31, 1996

Plaintiff 1 and four others (Attorney Kim Jong-woo, Counsel for the plaintiff-appellant)

The director of the tax office.

Seoul High Court Decision 95Gu15430 delivered on August 29, 1996

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court.

1. Article 26 of the Administrative Litigation Act provides that "the court may, if it deems it necessary, examine the evidence ex officio and determine facts which the parties have not claimed." Thus, if the court deems it necessary in the administrative litigation, it may determine ex officio the facts which the parties have not asserted clearly based on the records (see Supreme Court Decisions 94Nu4820, Oct. 11, 1994; 92Nu3199, Jul. 10, 192, etc.).

In the same purport, although the court below did not dispute the parties, it is just to review and determine the amount of deduction of the inheritance tax amount by the data presented in the records, and there is no violation of the principle of pleading. The grounds of appeal pointing this out are without merit.

2. According to the reasoning of the judgment below, the court below determined that the non-party died on October 17, 1990, and reported inheritance tax to the defendant on April 16, 1991 with the amount of 2,213,876,616 won, which was the wife of the deceased. The defendant added 150,210,00 won to the taxable value of inherited property and defense tax for the plaintiffs within one year before the commencement of inheritance, and then corrected the amount of inherited property by adding 2,66,141,36 won to the taxable value of inherited property and 2,000 won, 360,000 won which was the reported value of inherited property 2,66,000 won, 360,000 won which was the reported value of inherited property under the former Inheritance Tax Act (amended by Act No. 15063, Dec. 8, 1991; 4, 2016, 3606,3616,064,06.

However, Article 20-2 (1) of the Act provides that 10/100 of the amount calculated by deducting the amount of deduction or exemption from the amount of deduction or exemption from the amount calculated by multiplying the tax rate under Article 14 from the tax base of the reported inherited property shall be deducted from the amount of the inheritance tax. Article 20-2 (1) of the Act provides that "the tax base of the reported inherited property" refers to the amount calculated by the following formula. Article 20-2 (1) of the former General Rules of the Inheritance Tax Act (amended by April 8, 1994) provides that "the tax base of the reported inherited property" refers to the tax base determined by the Government 】 the total amount of the valuation of the inherited property reported 】 the total amount of the valuation of the inherited property / the total amount of the valuation of the inherited property reported / the total amount of the valuation of the inherited property. Thus, the tax base of the reported inherited property under Article 20-2 (1) of the Act refers to the legitimate tax base (see Supreme Court Decision 96Nu877, May 31, 19996).

Therefore, in this case where the entire amount of the inherited property is reported, the deduction amount shall not be calculated by 2,213,876,616 won for the reported inherited property, but shall be calculated by 2,66,141,366 won for the reasonable appraised value of the reported inherited property. Even if the report amount of the inherited property is calculated by the reported amount, there is an error of law by misunderstanding the legal principles as to the calculation of the reported amount of the inheritance tax, and such an error affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out has merit.

3. Therefore, the part of the judgment below against the plaintiffs is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal

Justices Lee Don-hee (Presiding Justice)