Early High Court Decision 2015Du472 ( March 7, 2016)

In light of the ability of the principal debtor and the joint guarantor to repay, it is reasonable to deem that the claim for indemnity of the secured debt of this case cannot be recovered.

Since the principal obligor and the joint guarantor are objectively recognized that it is difficult to recover the claim for indemnity equivalent to 460 million won of the water guarantee obligation of this case due to the insolvency of the debtor and the joint guarantor, it shall be deemed that the claim for indemnity equivalent to 460 million won of the water guarantee obligation of this case cannot be recovered.

Article 14 of the Inheritance Tax and Gift Tax Act (Public Imposts, etc. Deducted from Value of Inherited Property)

2016Guhap2595 Revocation of Disposition of Revocation of Inheritance Tax Imposition

Yellow AA

The director of the tax office

March 3, 2017

March 31, 2017

1. The Defendant’s imposition of KRW 370,686,260 against the Plaintiff on May 1, 2014 is 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 instant disposition

A. On September 22, 2011, the mother of the Plaintiff, YellowB, and YellowCC (hereinafter referred to as “the decedent, etc.”) (hereinafter referred to as “Plaintiff, etc.”) borrowed KRW 460 million from ○○○○ Livestock Cooperatives (hereinafter referred to as “○○○ Livestock Cooperatives”) at the time KimE obtained a loan of KRW 460 million (hereinafter referred to as “the instant loan obligation”) to guarantee the above loan obligation (hereinafter referred to as “the instant loan obligation”), the Plaintiff, YB, and YCC (hereinafter referred to as “the instant real property”) made a mortgage contract with a maximum debt amount of KRW 598 million,000,000,000,000 for a notarial deed, and then made a joint payment of KRW 278-16,241 square meters (hereinafter referred to as “the instant real property”). Meanwhile, the mother of the Plaintiff, etc. at the time of completing the registration of creation of mortgage on September 23, 2011 (hereinafter referred to as “the instant real property obligation”).

B. After that, on September 28, 2012, the decedent died, and the two money stables filed an application for ownership transfer registration by subrogation of the Plaintiff, etc. on January 25, 2013, when the principal debtor and the joint guarantor did not repay the debt of the instant loan, and the Plaintiff, etc. filed an application for ownership transfer registration by subrogation of the Plaintiff, etc. on September 28, 2012, the Plaintiff, etc. completed the ownership transfer registration by 1/3 shares of each of the instant real estate on the ground of inheritance on September 28, 2012. After that, the ○○ Livestock Cooperatives filed an application for voluntary auction of the instant real estate and received a decision to commence auction on March 11, 2013 (Seoul Central District Court 20

C. Accordingly, on February 20, 2013, the Plaintiff, etc. sold the instant real estate in the amount of KRW 500 million on the condition that the purchaser takes over the instant water guarantee obligation of KRW 460 million, which is the secured debt of the registration of creation of a neighboring mortgage regarding the instant real estate (the registration of ownership transfer is completed on April 30, 2013) and paid KRW 460 million on the instant water guarantee obligation, and on March 31, 2013, the Plaintiff, etc. reported and paid the inheritance tax of KRW 209,59,419, after deducting the amount of KRW 460 million from the value of the inherited property.

D. However, from October 14, 2013 to January 21, 2014, the Defendant conducted an inheritance tax investigation with respect to the Plaintiff, etc., and then notified the Plaintiff, etc. of the imposition of inheritance tax on the ground that the Plaintiff, etc. can recover the amount equivalent to KRW 460 million for the instant water guarantee obligation of KRW 460,000,000, including KRW 460,000,000,000, as well as KRW 74,40,000,000 from the value of inherited property, on February 12, 2014.

E. On March 11, 2014, the Plaintiff filed a request for pre-assessment review with the Defendant on March 11, 2014, but received a non-adopted decision, and the Defendant additionally determined and notified KRW 370,686,260 of inheritance tax to the Plaintiff, etc. on the same ground as the notice of pre-assessment on May 1, 2014 (hereinafter “instant disposition”).

F. On July 28, 2014, the Plaintiff filed an appeal with the Tax Tribunal on November 25, 2014, but was dismissed on March 7, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The plaintiff et al. failed to recover the real guarantee obligation of this case from the value of inherited property on the premise that the plaintiff et al. can recover the real guarantee obligation of this case on the premise that the real guarantee obligation of this case constitutes the obligation to be deducted from the value of inherited property, although the real guarantee obligation of this case constitutes the obligation to be deducted from the value of inherited property, the disposition of this case which did not deduct the real guarantee obligation from the value of inherited property is unlawful.

B. Determination

1) Article 14(1)3 of the Inheritance Tax and Gift Tax Act provides that, where inheritance commences due to the death of a resident, the debts related to the decedent or the inherited property as of the date of commencing the inheritance shall be deducted from the value of the inherited property.

In this context, the amount of an inheritee’s obligation to be deducted from the value of inherited property refers to an obligation for which it is deemed clear that the inheritee has to perform with the ultimate burden of the inheritee at the time of commencement of the inheritance. Thus, in case where the inheritee bears joint and several liability for a third party or bears the obligation as a surety, the principal obligor should not perform his obligation, and where it is deemed that the principal obligor has no possibility of receiving reimbursement even if he exercises the right to reimbursement against the principal obligor, the amount of such obligation can be deducted from the value of inherited property. In such case, whether the principal obligor is not in an impossible condition at the time of commencement of the inheritance, generally, is not in a situation of insolvency, composition, corporate reorganization, or compulsory execution, etc., and there is no possibility of receiving a loan differently because the principal obligor has continued to perform the obligation for a considerable period of time, and it is objectively determined whether it is impossible to recover the obligation due to the circumstances such as failure to perform the obligation for a third party, and on the other hand, it is reasonable to dispute the taxable value of inherited property 2084.

2) However, it is reasonable to view that there is no dispute between the parties, or that there is a situation in which it is practically difficult for the Plaintiff, etc. to recover the claim for indemnity amount equivalent to KRW 460 million from the real liability of this case by exercising the right to indemnity against the principal debtor of the loan of this case and the joint guarantor, and that the disposition of this case which did not deduct KRW 460 million from the value of the inherited property is unlawful on the premise that the Plaintiff, etc. can claim reimbursement against the principal debtor and the joint guarantor. Accordingly, the Plaintiff’s assertion pointing this out is reasonable, and on the other hand, the disposition of this case which did not deduct KRW 460 million from the value of the inherited property is unlawful.

① In addition to the decedent who is a surety to secure the obligation of the instant loan, the principal obligor and the joint guarantor are also joint and several sureties, but as the principal obligor and the joint and several sureties fail to fully repay the obligation of the instant loan, they have filed an application for a voluntary auction on the instant real estate and received a decision to commence the auction. As such, the said obligation constitutes the obligation deemed to have been guaranteed by the decedent, which is ultimately borne by the decedent at the time of commencement of the inheritance.

② 이 사건 대출금 채무의 주채무자인 김EE은 최FF의 명의대여자에 불과하고, 실질적 주채무자인 최FF과 그의 어머니이자 연대보증인이 김GG은 '별다른 재산도 없고, 일정한 직업도 없어 변제할 의사와 능력이 없는 상태에서 고령인 피상속인을 기망하여 피상속인으로 하여금 거액의 대출을 받게 한 후 이를 편취하였다'는 범죄사실로 사기죄의 공범으로 유죄판결이 확정되거나(서울중앙지방법원 2016. 11. 16. 선고 20XX고단XXXX 판결, 서울고등법원 2017. 2. 15. 선고 20XX노XXXX 판결) 기소유예처분을 받았다. 연대보증인인 구HH 역시 최FF의 친구로서 최FF의 부탁에 따라 연대보증을 한 것으로 보인다.

③ At the time of the instant loan, FF had no real estate owned by it, failed to carry out a project that requires KRW 1.950 million with business funds, and borrowed money from a third party for the purpose of monthly rent deposit of an apartment apartment to live and traffic accident compensation agreement by the spouse. There was no real estate owned by the Gu HH, and the money was borrowed from a third party for the purpose of repayment of debts or repayment of credit card arrears, etc. In short, it is reasonable to view that FF and Gu H had a considerable shortage of funds at the time of the instant inheritance.

④ The fact that KimG has no business ability due to the elderly, and that there is no income and no property, there is no dispute between the parties.

⑤ The Plaintiff filed an application with the competent authority for the name of the property to enforce compulsory execution on the property of the highest FF, KimG, and the Gu HH, but the highest FF and the Gu H were dismissed as being impossible to serve, and KimGG were confirmed to have no property. In addition, according to the Plaintiff’s personal confirmation, KimE, a primary debtor, has no property to enforce compulsory execution, such as real estate, and the highest FF appears to have failed to enforce compulsory execution even by the tax authority because the amount of national tax loss was 19,549,00 won in the ○○ Tax Office, and the automobiles owned by the former HH were offered as security to the financial institution.

④ Considering the above circumstances, as seen earlier, KimE, the primary debtor, at the time of commencing the inheritance due to the Defendant’s integrated national tax computer network and the data from the Financial Settlement Board, operated coffee specialty; the Plaintiff, etc., operated the coffee specialty; the Plaintiff, the actual primary debtor, earned income (total wage of KRW 28,883,00, KRW 86,500, KRW 800, KRW 2000, KRW 37700,000; and the former H had a golf practice range of KRW 24,854,000, KRW 500, KRW 500, KRW 460,000, in total wage of this case) by exercising the right to indemnity against KimE, the largest FF, and the former H, cannot be readily concluded that the Plaintiff, etc. had recovered the claim for reimbursement of KRW 46,00,000,000 in total wage of this case.

C. Scope of revocation

In a lawsuit seeking revocation of a taxation disposition, whether the pertinent disposition exceeds a reasonable tax amount or not is determined depending on whether the pertinent tax amount is exceeded. The parties can submit objective tax bases and materials in support of the tax amount until the closing of argument in the fact-finding court. When calculating the legitimate tax amount to be lawfully imposed based on such materials, only the portion exceeding the reasonable tax amount should be revoked, but in other cases, the entire taxation disposition shall be revoked (see, e.g., Supreme Court Decision 94Nu13527, Apr. 28, 19

However, according to the statement in Eul evidence No. 1, unlike the time when the plaintiff et al. reported and paid the property of this case at the time of the disposition of this case, the defendant denied the deduction of a total of KRW 740 million from the value of the property of this case, including the amount of KRW 460 million,00,000,000,000,000,000 from the value of the property of this case, and the fact of taxation different from the fact of taxation, such as increasing the value of the property of KRW 66,123,530, thereby making an additional decision and notification of the amount of the inheritance tax of KRW 370,686,260,00,000,000 as the basic facts of taxation acknowledged at the time of the disposition of this case, the legitimate tax amount of this case can not be calculated in the case of deducting the amount of the property

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.