The disposition taken on the premise that the deposit in the name of the deceased is owned by the decedent is illegal in regarding the unregistered amount, etc. as the inherited property.

In light of the fact that it is impossible to deny the legal personality of the instant SPC and that it is an independent right holder, the disposition taken by deeming the unregistered amount, etc. as the inherited property on the premise that the deposit is owned by the decedent is difficult to view the instant SPC’s name deposit as the ownership of the decedent.

Article 15 (Presumption of Inheritance of Property Disposed before Commencement of Inheritance Tax and Gift Tax Act)

Seoul Administrative Court 2012Guhap28926

KimAA et al.

*The Director of the Tax Office

December 11, 2015

2015.01.29

1. Details of the disposition;

A. Kim* was respectively established on January 10, 1985, as Gap corporation, as Eul corporation, and as Eul corporation (the combination of Gap corporation and Eul corporation hereinafter referred to as "SPC of this case").

"김**은 2007, 6. 6. 사망하였고(이하망인'이라 한다)，자녀인 원고들이 망인의 재산을 상속하였다(원고들 이외에 김DD, 김EE도 망인을 상속하였다).", "나. 피고는 이 사건 SPC 명의의 예금계좌에서 인출된 금액 중 별지 |상속개시전 2 년 이내 인출예금 소명요구1 기재와 같이 상속인들이 소명하지 못한 132,840,329,500원 (이하 미소명 금액'이라 한다)을 10년 내 처분재산 신고 누락으로, 별지 김FF 횡령액 기재와 같이 김FF가 인출하여 간 32,446,957,452원(이하 _김FF 인출액이라 한 다)을망인의 김FF에 대한 손해배상채권 신고누락으로 보아 위 금액들을 상속재산 가액에 포함시켜, 2011. 8. 30. 원고들을 비롯한 상속인들에게 상속세 149,676,439,950 원(가산세 포함)을 결정•고지하였다 상속인별지분에 따라 원고들은 각 상속세 27,211,176,784원을 결정•고지 받았다(이하 '이 사건 처분'이라 한다).",2. 이 사건 처분의 적법 여부

(a) Facts of recognition;

1) The Deceased established *** A corporation for the purpose of owning A and * B corporation for the purpose of owning A, and * on April 17, 1986, respectively.

2) The Deceased sold heading** in 2000, 2001* in 2001, and * in 2001, and deposited sales proceeds in the Hong Kong Branch Deposit Account in the name of each of the instant SPC, and on December 14, 2001, the signing authority of the said Account changed from the Deceased to KimD.

** From the water delivery to November 199, the KimF retired in November 14, 2001 to March 17, 2005, when working as the deceased’s secretary, transferred to Byung corporation with the signature of KimD on the application for remittance (APD’s Fortification).

In addition, the KimF transferred USD 51,587,00 in total from the Sz. bank account under the name of the corporation A to the Mz. Sz. bank account under the name of the corporation B, and USD 37,368,00 in total from the Mz. bank account under the name of the corporation B to the Mz. Sz. bank account under the name of the corporation B.

3) While Kim F and KimD were indicted on the ground that they were guilty of taking advantage of the fact that the deceased was unable to make a normal decision due to disease, by withdrawing the instant SPC Company fund and taking advantage of the fact that the deceased could not make a normal decision, they were acquitted on the ground that it is difficult to deem that the deceased could not make a normal decision at the time, and the judgment became final and conclusive on August 27, 2015 (Supreme Court Decision 2013Do12821).

4) The Plaintiffs and the instant SPC filed a claim for return of unjust enrichment on the deposit withdrawn against KimD and KimF, but were dismissed on the grounds that it is difficult to recognize that the signature of the deceased was forged or that withdrawal was made against the deceased’s delegation, while the deceased was unable to make a normal decision (Seoul Central District Court 201Gahap11408, and that the judgment became final and conclusive on September 6, 2014).

[Judgment of the court below] The facts that there is no dispute over recognition, the entry of Gap evidence Nos. 23 to 31, and the purport of the whole pleadings.

Article 15(1)1 and (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010); and Article 11 of the Enforcement Decree of the same Act, where the purpose of use is objectively unclear, such as where the other party to the transaction, such as cash withdrawn by the decedent within two years before the date the inheritance commences, is not verified, the heir is presumed to have succeeded to it and is included in the taxable value of inherited property. To apply such presumption provision, the withdrawn cash, etc. should be the property substantially reverted to the decedent.

As seen earlier, the Deceased established the instant SPC for the purpose of the so-called convenience value by establishing a physical industry ** in Korea, and establishing the instant SPC. Such special purpose company is established without human and physical capital by meeting only the minimum capital investment requirements to achieve a temporary objective. In cases where it is impossible to recognize the independent legal personality of such special purpose company, for instance, in a case where it is deemed to be used as a means to avoid the application of the law to the person behind the corporate personality of the special purpose company, or where it is deemed to be subjective intent or purpose, such as evading obligations, avoiding contractual obligations, evading illegal objectives, etc., and abusing the corporate system (see, e.g., Supreme Court Decision 2004Da26119, Aug. 25, 2006).

However, in fact, the instant SPC withdrawns money from a corporate deposit in the name of a juristic person and filed a civil lawsuit against KimD and KimF, and was identified as a victim in the criminal judgment against KimD and KimF. In addition, convenience keeping alone is insufficient to deem that there was a tax avoidance purpose, and as long as it is difficult to deem that the instant SPC was established in the intent or purpose to abuse the company system as above, it cannot be deemed that it was the deceased’s possession by denying the legal entity of the instant SPC’s name (the Defendant asserted that KimD and KimF’s withdrawal of the instant SPC deposit and repeated or distributed the account transfer in order to conceal the vested entity, and thus, the instant SPC asserted that there was a tax avoidance purpose, but since the loan’s deposit was transferred to the account of Byung and JungF after it was transferred to another account of each of the instant SPC, it is difficult to view that the amount of deposits or distributed is excessive, and there is no other evidence to support such purpose).

Therefore, the instant disposition based on the premise that the instant SPC deposit is owned by the deceased is unlawful (it is unlawful to impose inheritance tax premised on the existence of the right to claim the return of deposits withdrawn by KimD, KimF, as seen earlier, as the judgment became final and conclusive in criminal cases, even if the Plaintiffs succeeded to the deceased’s share, as seen earlier, as seen in the foregoing. Therefore, the instant SPC cannot claim the return of the withdrawn amount, and thus, it is unlawful to impose inheritance tax based on the premise that the right to claim

3. Conclusion

Thus, the plaintiffs' claim of this case is accepted on the ground of the reasons.