Seoul High-2016-Examination-683 ( October 31, 2018)

Where no return is filed within the statutory due date of return, no return tax credit shall be received, and in such cases, the imposition of additional tax shall be legitimate.

In principle, a report shall be filed within the statutory due date of return even in cases where the successor or inheritance value is not determined, and where a report is not filed within the due date of return, a tax credit for reported tax cannot be received, and a disposition imposing additional tax

Article 67 of the Inheritance Tax and Gift Tax Act

2018Guhap74853 Revocation of Disposition of Imposing inheritance tax, etc.

KimAA et al.

○ Head of tax office

March 6, 2019

April 12, 2019

1. Of the instant lawsuits, the part concerning Plaintiffs KimA, KimB, KimB, KimCC, KimD, NaF, NaG, HH, and Na II are dismissed, respectively.

2. The plaintiff Kim J's claim is dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s disposition of imposition of KRW 00,000,00 (including additional tax, and KRW 000,000,000,000, including inheritance tax, etc.) against the Plaintiffs is revoked.

1. Details of the disposition;

A. The plaintiffs are the successors or substitute successors of the deceased KimK (20**.**.*.*. death, hereinafter referred to as "the inheritee's household level is as shown in annexed Table 1). The plaintiffs KimA, KimB, KimCC, and KimD are children of net KimL (20***.**.**. death) and net MM (20**.**.*.*.*.*.) who are the deceased's spouse, and plaintiffs NaF, NaF, NaG, H and Na II are those of the deceased's mother KimN (Death on November 5, 1996) and deceased MaO (Death**.*.) who are the deceased's spouse. The plaintiff Kim JJ is the children of the deceased's deceased.

나. 원고들은 2014. 1.경 피상속인의 주거래은행인 주식회사 ○○은행(이하 '○○은행'이라 한다)의 지점을 방문하여 상속재산의 확인 등을 요청하였으나 ○○은행 담당직원은 피상속인의 가족관계등록부에 모(母)인 최PP의 주민등록번호가 기재되어 있지 않은 점, 피상속인의 형제들 중 김NN(배우자인 나OO의 호적에 편제)은 출생지(00도 00군 000읍 0리 *9) 및 부(父)인 김QQ의 한자성명(金QQ)이 형제들과 다른 점(00도 00군 000읍 0리 *6, 金WW)을 이유로 원고들이 진정한 상속인들인지 불명하다고 보아 이를 거부하였다.

다. 이에 원고 나II은 피상속인과 나OO의 호적을 정정하는 재판을 청구하여 00가정법원 2014. * **.자 20**호파****호 결정으로 피상속인의 폐쇄가족관계등록부에 모 최PP의 성명, 출생연월일, 주민등록번호, 본을 추가하는 결정을 받았고, 서울00지방법원 2014. 8. 4.자 20**호파0000호 결정으로 나OO의 제적부에서 김NN의 부 김QQ의 성명(한자)과 전호적을 정정하는 결정을 받아 이를 ○○은행에 제출하였으나,○○은행은 2015. 1. 9. 피상속인의 예금에 관하여 상속인불확지공탁을 하였다.

D. The plaintiffs filed a lawsuit against ○○ Bank to seek the payment of insurance money or deposits that were owned by the decedent (Seoul 00 District Court 200Nu2000****; hereinafter referred to as "related civil lawsuit") against ○○ Bank, by stating the list of property as shown in [Attachment 2]***. The plaintiffs filed a claim against ○○ Bank and a judgment to partially accept a claim against ○○○ Bank, and became final and conclusive around that time (the lawsuit against ○○ Life Insurance Co., Ltd. was withdrawn, and the settlement recommendation decision was final and conclusive between ○○ Life Insurance Co., Ltd.).

E. Plaintiff Kim J reported and paid the inheritance tax as △△, △△△, and △△△△. However, the Defendant reported and paid the inheritance tax as △△△, △△△△, *.*****,******************* in addition to the amount of the inheritance tax and the amount of the voluntary payment, the difference between the amount of the final tax and the amount of the voluntary payment (hereinafter referred to as “the instant disposition”). The details of the tax notice delivered to the Plaintiffs are as shown in attached Table 3.

F. Plaintiff Kim J made a request for review of the Board of Audit and Inspection against the instant disposition*. However, the Board of Audit and Inspection***. this was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, 7 through 11, 17, 18 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul evidence 1 and 2, significant facts in this court, the purport of the whole pleadings

2. Ex officio determination as to whether the remainder of the plaintiffs except plaintiffs Kim J among the lawsuit of this case is legitimate

A. Relevant legal principles

In the case of joint inheritance, an objection against the imposition of inheritance tax shall be based on the principle that each inheritor files a lawsuit against the amount of tax liable for his/her own payment. However, in the procedure of the preceding trial, such as a request for examination and a request for trial, if a person who is entitled to receive a notification of the tax base and amount of inheritance tax on behalf of the co-inheritors receives the notification and goes through the preceding trial procedure, the remaining inheritors need not take the same procedure for the previous trial. This also applies to cases where a tax authority notifies not only a person who is entitled to receive a notification on behalf of the inheritor but also a successor (see Supreme Court Decision

However, in a case where a person liable for duty payment can file a lawsuit seeking revocation of a tax disposition without going through a prior trial procedure, barring special circumstances, he/she shall file a lawsuit seeking revocation within 90 days from the date on which he/she became aware of such disposition, etc., in accordance with Article 20(1) of the Administrative Litigation Act, barring special circumstances. The same applies to a case where one of the persons liable for duty payment who is liable for the same duty has brought a lawsuit seeking revocation of the tax disposition immediately without going through a prior trial procedure (see Supreme Court Decision 2015Du47607, Dec. 23, 2015).

B. Determination

As seen earlier, as long as Plaintiff Kim J had gone through the pre-trial procedure, the remaining plaintiffs except Plaintiff Kim J may file a lawsuit seeking revocation of the instant disposition without going through the pre-trial procedure, but within 90 days from the date of becoming aware of such disposition. The above plaintiffs were aware of the instant disposition at the time of service specified in the attached Table 3, and it is apparent that the above plaintiffs' part of the instant lawsuit filed on September 14, 2018 was filed at the time of 90 days from the date of service of each of the above documents. Accordingly, the remaining plaintiffs' part except Plaintiff Kim J in the instant lawsuit was unlawful since it did not comply with the period for filing the lawsuit.

3. Whether the instant disposition is lawful (Judgment as to the claim by the Plaintiff Kim J)

A. Plaintiff Kim J's argument

1) Reporting Tax Credit

According to Article 67(5) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 12168, Jan. 1, 2014; hereinafter the same), in cases where the heir has not been determined, the heir should submit the inheritance relationship of the heir determined separately from the report on the taxable value and tax base of the inheritance under paragraph (1) within 30 days from the date on which the heir becomes final and conclusive. The Plaintiffs are the heir only when the judgment on related civil procedure becomes final and conclusive, and the inheritance tax return is filed within 30

2) Violation of imposition of additional tax

Since the Plaintiffs cannot confirm or prove inherited property or shares of inheritance until the judgment on related civil procedure becomes final and conclusive, as long as they reported and paid inheritance tax within 30 days from the date when the judgment on related civil procedure became final and conclusive, they do not become subject to the imposition of additional taxes for non-declaration and non-performance of payment, or there are justifiable grounds for not being able to report and pay inheritance tax under Article 48 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same).

B. Relevant statutes

Attached Form 4 shall be as listed in attached Table 4.

C. Determination

1) If the amount of the returned tax is deducted

According to Article 67 (1) of the former Inheritance Tax and Gift Tax Act, the heir shall report the taxable value and tax base of the inheritance under Articles 13 and 25 (1) to the head of the district tax office having jurisdiction over the place of tax payment within six months from the end of the month in which the date inheritance commences, as prescribed by Presidential Decree. Article 69 (1) of the same Act provides that a return on the tax base of inheritance under Article 67 of the same Act shall be made to deduct a certain amount from the calculated amount of inheritance tax if the heir files a return on the tax base of inheritance under Article 67 of the same Act. Meanwhile, Article 67 (5) of the same Act provides that the heir

In light of the language and purport of the above provision, it is reasonable to deem that an heir has a duty to report the taxable value and tax base of the inheritance within the reporting deadline, in principle, even in cases where the heir has not been confirmed within the reporting deadline, and the obligation to report the inheritance relationship of the confirmed heir is clear that the obligation to report the taxable value and tax base of the above inheritance is separate from the obligation to report the taxable value and tax base of the above inheritance. Therefore, if the reporting deadline under Article 67(1) was in excess of the above reporting deadline, even if the heir files a return on the taxable value and tax base of the inheritance within 30 days from

On the other hand, since Article 6 of the former Framework Act on National Taxes provides for the grounds for extension of the period for filing a return, it is reasonable to deem that the period can be extended in extenuating circumstances. On the contrary, if such grounds are not recognized, it is impossible to arbitrarily extend the period for filing a return. According to Articles 45 and 45-2 of the former Framework Act on National Taxes, a person who has filed a return by the statutory due date for filing a return can file a revised return or file a request for correction after the statutory due date for filing a return, as alleged by the plaintiff Kim J, it cannot be deemed that the statutory due date for filing a return should be extended only

2) Whether the imposition of additional tax is unlawful

A) Article 48(1) of the former Framework Act on National Taxes provides that "no additional tax shall be imposed in cases where a taxpayer has justifiable grounds for failing to fulfill his/her obligations." In order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an additional tax under tax law is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates various obligations, such as a tax return and tax payment, without justifiable grounds. Therefore, it is unreasonable for the taxpayer to be unaware of his/her obligations due to a conflict of views due to the construction of the tax law beyond a simple scope of land or misunderstanding. Therefore, it is unreasonable for the taxpayer to be unaware of his/her obligations due to a lack of knowledge due to a conflict of views due to the construction of the tax law beyond a mere scope of land or misunderstanding, or there is a circumstance that it is unreasonable for the taxpayer to expect to fulfill his/her obligations.

B) In light of the following circumstances that can be recognized by comprehensively taking account of the overall purport of the evidence No. 6 and No. 3, the evidence submitted by the Plaintiffs alone cannot be deemed as having justifiable grounds for failing to perform the duty to report and pay inheritance tax within the given period, and there is no other sufficient evidence to acknowledge otherwise.

(1) From around October 200**, the decedent was hospitalized in △△ Hospital with Plaintiff BII and HaH as his guardian, and EE, who is another ancestor of the decedent, and his father Kim J, was married with Plaintiff B and II. The decedent Kim J applied for the adjudication of incompetency of the decedent on 20****. The decedent Kim J applied for the adjudication of incompetency of the decedent on 1999, and withdrawn it. As such, the Plaintiff KimJ seems to have been close to the decedent, it seems to have been relatively easy to grasp the inherited property of the decedent.

(2) After the death of the decedent, Plaintiff Kim J visited a branch of ○○ Bank on January 2014 and was notified of the amount of deposit claims verbally.

(3) Plaintiff Kim J was already aware of a significant portion of inherited property as shown in Appendix 2 even at the time of filing a related civil suit**. This is the same kind of inherited property (Evidence 1, No. 3) actually reported by Plaintiff Kim J and there is no big difference between the value of inherited property (Evidence 1, No. 3) and the value.

(4) According to Articles 45 and 45-2 of the former Framework Act on National Taxes, a person who has filed a tax base return by the statutory due date of return can file a revised return or request for correction even after the due date of return, so it is not always possible to make a report only after accurately grasping the value or shares of inherited property. If the Plaintiff Kim J-J has an inevitable reason as provided by Article 2(1) of the Enforcement Decree of the Framework Act on National Taxes, an application for extension

On the other hand, there is no reason to expect the plaintiff GimJ to fulfill its obligations due to the conflict of opinion in the interpretation of the tax law regarding the return and payment of inheritance tax.

4. Conclusion

Therefore, among the lawsuits in this case, the remaining plaintiffs except plaintiffs Kim J is dismissed, and the claims by plaintiffs Kim J are dismissed as it is without merit. It is so decided as per Disposition.