If it is impossible to recover the remaining housing balance, it shall not be deemed an inherited property.

Even if the property is disposed of within one year prior to the commencement of the inheritance, it shall not be considered as inherited property if the proceeds are not recovered.

Article 7 (Scope of Inherited Property)

1. The Defendant’s disposition of imposition of KRW 93,078,480 against the Plaintiff on November 8, 2004 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. After the Plaintiff’s mother’s death on August 28, 1997, the Plaintiff inherited ○○○’s property, but did not report the taxable value and tax base of the inheritance to the head of the competent tax office.

B. On November 8, 2004, the Defendant disposed of KRW 912,94,00 as property within one year prior to the commencement of inheritance, on the ground that ○○○○○ sold on December 19, 196 a house 910-6, △△△△-6, 104, which was sold on December 19, 1996 by ○○○○○, for the purpose of one year prior to the death (hereinafter “instant house”), 50 million won, excluding KRW 150,000,000,000,000 for the lease deposit, and other 412,994,94,000,000,000 as property within one year prior to the commencement of inheritance, and on the ground that its use is unclear, the above amount should be deemed as the taxable value of inheritance tax, and thus the inheritance tax base was determined by deducting KRW 500,500,000,000 won in a lump sum of deductions under Articles 214.97.97.

C. The plaintiff raised an objection against the defendant on December 23, 2004, but the defendant dismissed the decision of dismissal. The plaintiff filed an appeal with the National Tax Tribunal on March 21, 2005, but the National Tax Tribunal dismissed the above appeal.

[Ground of recognition] Unsatisfy, Gap evidence 2, Gap evidence 3

2. Whether the disposition of this case is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

○○○ transferred the ownership for the purpose of securing a loan for business funds of ○○, rather than selling the instant house to ○○○. However, the title was de facto impossible to restore, and the sales balance was not received 500 million won. Moreover, since ○○○ de facto impossible to recover the above sales balance due to the de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto, the instant disposition imposing tax otherwise reported is unlawful, inasmuch as

(2) The defendant's assertion

○○○ sold the instant house to ○○, and if the Plaintiff did not receive KRW 500 million from ○○, the Plaintiff, as a matter of course, made the Plaintiff prepare a letter on January 16, 1997, stating that the said purchase and sale balance was paid, including KRW 500 million. If the Plaintiff did not receive the purchase and sale balance of the instant house, it is reasonable to deem that the Plaintiff did not seek to offset the Plaintiff’s obligation to pay to ○○. Moreover, it cannot be readily concluded that ○○ was insolvent, and it cannot be said that the Plaintiff failed to receive KRW 500 million from the purchase and sale balance of the instant house in order to recover the purchase and sale balance of the instant house, or that the Plaintiff did not take any bonds preservation measures.

(b) Related statutes;

Article 7 of the Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998) Scope of inherited property

(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.

○ Public imposts, etc. deducted from the value of inherited property under Article 14 of the Inheritance Tax and Gift Tax Act

(1) Where inheritance commences due to the death of a resident, the following values or expenses related to the predecessor or inherited property as of the date inheritance commences shall be subtracted from the value of inherited property:

2. Funeral expenses; and

Article 15 of the Inheritance Tax and Gift Tax Act, including the taxable value of the property before the commencement of inheritance

(1) Where an ancestor disposes of the property or bears an obligation of the ancestor and falls under any of the following subparagraphs, it shall be presumed that the heir succeeds to such property and shall be included in the taxable amount of inheritance taxes under Article 13:

1. Where the amount obtained by disposing of the property of an ancestor or withdrawn from the property of the ancestor is not less than 200 million won by the types of property within one year before the date inheritance commences, and the use thereof is not objectively clear under the conditions

2. Where the total amount of debts borne is at least 200 million won within one year before the date inheritance commences, and the use thereof is objectively unclear, as prescribed by Presidential Decree;

Article 18 Basic Deductions of Inheritance Tax and Gift Tax Act

(1) Where inheritance commences due to the death of a resident, 200 million won shall be deducted from the taxable amount of inheritance taxes (hereinafter referred to as "basic deduction").

○ Article 21 of the Inheritance Tax and Gift Tax Act:

(1) Where inheritance commences due to the death of a resident, the heir or testamentary donee may deduct the sum of the amount of deduction under Articles 18 and 20 (1) and the larger amount between the amounts falling under any of the following subparagraphs:

Provided, That where no report is made pursuant to the provisions of Article 67, the amount falling under any of the following subparagraphs shall apply:

1. 50 million won, if Article 18 (1) is applicable;

Article 67 of the Inheritance Tax and Gift Tax Act:

(1) A successor or testamentary donee liable to pay inheritance tax under the provisions of Article 3 shall report the taxable value and tax base of inheritance under the provisions of Articles 13 and 25 (1) to the head of the competent tax office having jurisdiction over the place of tax payment within six months from the date the inheritance commences

(2) In cases under paragraph (1), a report shall be submitted to the head of the competent tax office having jurisdiction over the place of tax payment, along with documents proving the types, quantities, appraised values, division of property, various deductions, etc. of inherited property necessary for the calculation of the

Article 11 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 15971 of Dec. 31, 1998), the scope of assets or liabilities included in the taxable amount of inheritance taxes

(1) In the application of Article 15 (1) 1 of the Act, the calculation of the disposal amount and withdrawn amount of property shall be made according to any of the following subparagraphs:

1. Where the property of an ancestor is disposed of, the amount actually earned within one year before the date inheritance commences, from the proceeds from such disposal;

(2) The term "where the use is objectively unclear as prescribed by Presidential Decree" in Article 15 (1) 1 and 2 of the Act means cases falling under any of the following subparagraphs:

1. Where the other party to a transaction (hereinafter in this Article referred to as the "other party to transaction") of the amount received by an ancestor for disposal of the property or the money, etc. withdrawn from the property of the ancestor, or the amount received is not verified by the lack of transaction evidence, etc.

2. Where the opposite contractual party denies the receipt of money, etc., or the fact of receiving money, etc. is not recognized considering the opposite contractual party’s financial status

○ Evaluation of State, public bonds, etc., Article 58 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

(2) The value of credit of a loan, credit account receivable, bill of exchange, etc. shall be the value assessed under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy in consideration of the period of collection of the original, agreed interest rate, average interest rate formed in the financial market, etc.: Provided, That where all or part of claims are deemed impossible as of

C. Determination

(1) Article 15(1)1 of the Act provides that where the amount received by an ancestor by disposing of the property of an ancestor is not less than 200 million won by calculating it by the category of the property within one year before the commencing date of the inheritance, and the use thereof is objectively unclear as prescribed by the Presidential Decree, it shall be presumed that the heir succeeds to the inherited property and shall be included in the taxable value of the inherited property. The above provision aims to prevent the act of unreasonably reducing inheritance by recognizing the amount, the use of which is objectively unclear within one year before the commencing date of the inheritance, as the heir inherited the inherited property in cash under certain conditions, and thereby, including the amount included in the taxable value of the inherited property, as long as this is not proven to have been inherited in cash, even if it is included in the taxable value of the inherited property pursuant to the above provision, the taxation requirement shall be established by the tax authority in principle (see Supreme Court Decision 91Nu5730, Nov. 8, 191).

(2) As to the instant case, the Defendant testified during the main newspaper that the Plaintiff recovered 500 million won from the purchase and sale of the instant house, but as seen below, during the cross-examination process on △△ Complex disbursement statement (No. 10) to the effect that the remainder was not paid, it cannot be deemed that: (a) evidence No. 22, No. 3, and No. 6, and testimony by △△△ 500 million won was practically inherited to the Plaintiff; (b) evidence No. 1, No. 4, No. 521 through No. 31, No. 4, No. 521, and evidence No. 521, No. 521, and evidence No. 1, No. 5215, No. 1, No. 4, and the purport of the evidence No. 1, No. 521, No. 1, No. 4, and 500 million won of the instant house was found to have been actually inherited to the Plaintiff.

㈎ 주식회사 △△세라믹(이하 '△△세라믹'이라 한다)을 운영하던 □□□는 공장 신축을 위하여 ◇◇◇◇은행에 시설자금 및 운전자금 대출을 신청하였으나, 위 은행으로부터 대표이사 개인의 재산이 없으면 대출이 불가능하다는 통보를 받자, 원고에게 위 은행으로부터 대출 받을 수 있도록 ○○○의 소유인 이 사건 주택의 소유권 명의를 자신에게 이전해 줄 것을 요청하였다.

㈏ 원고는 약 17억원에 달하는 기존 채권을 회수하고 △△세라믹 발행의 약속어음 등에 대한 배서인으로서의 책임을 면하기 위해서는 □□□가 운영하는 △△세라믹의 사업이 원활하게 되어야 하므로 □□□의 요청을 받아들여 1996. 7. 20 □□□와의 사이에 이 사건 주택을 6억 5,000만원에 매도하고 계약금 1억 5,000만원은 전세보증금으로 대체하고 잔금 5억원은 1996. 12. 19. 지불받되 잔금을 받기 전에 매수인이 은행융자를 받을 수 있도록 명의를 이전하는 내용의 부동산매매계약을 체결한 후, 1996. 9. 5. □□□에게 이 사건 주택에 관한 소유권이전등기를 경료해 주었다.

㈐ □□□는 1996. 12. 17. ◇◇◇◇은행에게 이 사건 주택에 관하여 △△세라믹을 채무자로, 근저당권자를 ◇◇◇◇은행, 채권최고액을 10억원으로 한 근저당권을 설정해 주고 같은 달 19. △△세라믹 명의의 ◇◇◇◇은행 예금계좌를 개설한 다음 같은 달 20. 입금된 대출금 8억원을 인출하여 기계대금으로 발행된 약속어음 및 당좌수표의 결제자금으로 사용한 후, 원고에게 위 예금계좌의 통장 및 도장을 교부하였으나, 1996. 12. 30. 원고가 보관 중이던 위 예금통장 및 도장의 분실신고를 한 다음 새로이 예금통장을 발급받다 위 계좌로 입금된 대출금 2억원을 인출한 후 개인 용도로 사용하였다.

㈑ 원고는 1997. 1. 초 □□□가 합의를 어기고 일방적으로 대출금을 개인 용도로 사용한 사실을 추궁하면서 그때까지 발생한 채무의 상환계획을 공증하여 줄 것을 요구하였고, 원고와 □□□는 기존의 자금지원내역을 확정하기 위하여 1996. 12. 31.까지의 지원내역을 기재한 △△세라믹 지출내역서(갑10호증)를 함께 검토하면서 □□□가 이의가 있는 내역의 비고란에 'V'표시를 하면서 자필로 이의사유를 적었으며, 원고도 그 일정 부분을 양도하면서 삭제할 내역은 빨간 색 볼펜으로 선을 그어 표시하였다. 위 지출내역서 4쪽의 비고란에는 이 사건 주택의 매매잔금이 5억원으로 기재되어 있었는데 □□□는 자신의 자금사정이 어려우니 3억 5,000만원으로 감액하여 달라고 하면서 연필로 350,000,000원을 기재하였다가 재검토하면서 자금조달이 여의치 못하니 이 사건 주택의 매매계약이 성립하지 않았던 것으로 하고 빠른 시일 내에 이 사건 주택의 명의를 ○○○에게 환원하여 주겠다고 약속하였다. 결국 원고와 □□□는 총 1,145,810,508원의 지출내역서 금액 중 이 사건 주택의 매매잔금 5억원을 감액하고 기타 이의가 있는 금액 19,181,570원도 감액하여 최종적으로 626,628,938원으로 채권을 확정하였다.

㈒ 이에 □□□는 1997. 1. 16. 원고에게, 위에서 본 바와 같이 1996. 12. 31. 당시 아직 이 사건 주택의 매매잔금채무가 여전히 남아 있는 것을 전제로 하여 그 채무 중 1억 5,000만원을 감액하였다가 최종적으로 ○○○에게 이 사건 주택의 명의를 환원하는 조건으로 매매잔금채무 5억원 전부를 감액하고 남은 채무가 626,628,938원임을 인정하는 취지로 주식회사 ▷▷▷▷및 원고로부터 차용한 금액이 626,628,938원임을 확인하며 3개월 이내에 변제하기로 하는 내용의 각서를 작성하여 같은 달 17. 이를 공증해 주었다.

㈓ 원고는 1997. 2. 6. ◇◇◇◇은행으로부터 추가로 7억원의 대출을 받아 공증 받은 기계대금 1,125,944,000원 중 7억원을 결제하는데 사용하였다.

㈔ □□□는 △△세라믹을 경영하다가 1997. 초경 부도를 내고 잠적하면서 이 사건 주택의 명의 이전 약속을 이행하지 아니하여 결국 이 사건 주택은 1999. 5. 28. 임의경매로 낙찰되어 ○○○에게 소유권이 이전되었다.

In light of the above facts, it is reasonable to view that ○○○○ was not paid 500 million won until now after transferring the ownership in the form of a sales contract to ○○○ to be used for the purpose of securing a loan from a financial institution. Therefore, it shall not be deemed that ○○ is included in the taxable value of inherited property under Article 15(1)1 of the Act, which was not paid for the sale of the instant house.

(3) Therefore, the reason why ○○○○ was disposed of within one year prior to the commencement of the inheritance and its use is objectively unclear is that the Plaintiff does not expressly dispute the existence and value of the two real estate sales proceeds under the above 1-A. Even if such inclusion in the taxable value of inherited property is included in the taxable value of inherited property, it is obvious in the calculation that the tax base would be the tax base if a sum of 50 million won is deducted under Articles 14 and 21 of the Act. Thus, the disposition of this case, which notified the Plaintiff of KRW 93,078,480, which was calculated based on the tax base of KRW 407,94,190,000, should be deemed to exceed 5500,000,000,000 won, which is the excess amount, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons and it is so decided as per Disposition.

[Seoul High Court 2007Nu742 (Law No. 14, 2007)]

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant revoked the disposition of imposition of KRW 93,078,480 of inheritance tax of 1997 against the plaintiff on November 8, 2004 and the judgment of the court of first instance is revoked. The plaintiff's claim is dismissed.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The reasoning of the court's explanation concerning this case is the same as that of the judgment of the court of first instance, and thus, it is acceptable to accept this case in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

Therefore, the judgment of the court of first instance is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.