Seoul Administrative Court 2014Guhap57706 (Law No. 29, 2014)

Where cash is received after deposit of indemnity bonds, such indemnity bonds shall not fall under cash, deposits and securities.

It is reasonable to view that the scope of the property to be disposed of or withdrawn from the amount of the property is a classification of the property according to the legal nature of the property on the basis of the disposal or withdrawal of the property. In light of the history of amendment under Article 11(5) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the structure and the meaning of the text and text thereof, claims other than claims on deposit fall under the category and value of the property

2014Nu6447 Revocation of Disposition of Levying Inheritance Tax

Park AA

Director of the District Office

Intervenor joining the Defendant

Seoul Administrative Court Decision 2014Guhap57706 Decided August 29, 2014

March 6, 2015

March 27, 2015

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition disposition of KRW 147,720,236 of inheritance tax against the Plaintiff on April 1, 2013 exceeds KRW 83,907,840 of inheritance tax shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The disposition is as follows (the plaintiff is the first defendant on April 1, 2013 and the inheritance tax of 000 won against the plaintiff on April 1, 2013).

The appeal filed on March 6, 2015, while seeking revocation of the portion exceeding KRW 000,000 in the disposition of imposition.

The application for reduction reduces part of the purport of the claim and appeal. Accordingly, the application reduces part of the purport of the appeal.

The preliminary purport of the preliminary claim added as a preparatory document dated November 10, 2014 is deemed to have been withdrawn.

1. Details of the disposition;

A. On October 18, 201, the Plaintiff (hereinafter referred to as “the decedent”) who died on October 18, 201.

On April 30, 2012, the inheritors, including those of the inheritee, reported and paid KRW 000 of the total value of inherited property to the Defendant ( KRW 000, KRW 000, KRW 000, KRW 000, KRW 000, KRW 000, KRW 000, KRW 000), and KRW 000, KRW 000 of the taxable value of inherited property.

B.1) Meanwhile, the inheritee was co-defendants in the case of selling-out price return at Seoul High Court 2005Na00000 prior to the death of the inheritee. On January 19, 2007, the inheritee was sentenced to 40,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 from July 31, 2002 to nnn until January 5, 207.

2) Under the above judgment on November 30, 2007, the inheritee was subject to a decision to commence compulsory auction on the real estate owned by it at the request of Aa, bb, c, c, d, e, etc.

(c)

3) The decedent, including the sum of KRW 4,900,000 for enforcement expenses on March 14, 2008, 410,904;

210 won has been paid, and aa, bb, c, c, dd, e, etc. on the following day, March 15, 2008

The above application for compulsory auction was withdrawn. On April 29, 2010, the appeal was filed on April 29, 2010

As such, it became final and conclusive (Supreme Court 2007Da000).

4) On December 8, 2009, the decedent filed a suit for indemnity amounting to KRW 29,350,30,00 (=410,90,90,000) against the decedent, as Seoul Southern District Court 2009,000,000. The above court rendered a final and conclusive judgment on July 1, 2010 that “aa, bbb, c, c, d, e, f, g, hh, hh, and c, c, d, d, e, e, f, g, h, hh, and 3” (=410,904,210 x internal share 1/14) and from March 15, 2008.

5) Ddd, e and e shall, in accordance with the above judgment, become the decedent on July 9, 2010.

A total of 66,379,922 won was deposited. On July 19, 2010, the decedent received 66,379,992 won as a check (60,000,000 won) and cash (6,379,922 won) and then donated 50,000 won among them to grandchildren.

C. As a result of the inheritance tax investigation on November 1, 2012, the Defendant’s financial assets out of the total value of the inherited property.

00 won and 000 won for indemnity claim shall be added, and estimated inherited property shall be within two years of commencement of inheritance.

의 예금 인출액 000원과 수령한 공탁금 000원을 합한 000원에서 사전증여한 000원과 생활비 등으로 사용처가 확인된 000원을 공제한 000원 중 상속추정배제금액을 제외한 000원으로 결정함으로써 000원[= 000원 - 원고등 상속인들이 신고한 추정상속재산 000원 �= 000(상속개시전 1년 이내 예금인출액) - 000(사용처소명금액)

- 000(000 × 0.2, 상속추정배제금액) �]을 추가한 후 2013. 4. 1. 원고에

On the other hand, the inheritance tax amount of 000 won was determined and notified.

D. On December 30, 2014, the part of the inheritance tax return tax deduction in the disposition of imposition of April 1, 2013 as of December 30, 2014

Recognizing the Plaintiff’s assertion that it was lawful, the amount of KRW 000,000, out of the initial inheritance tax amount was reduced or corrected (for this reason, the amount of inheritance tax imposed on April 1, 2013 (=151);

904,250 won - 4,184,014). The plaintiff was 000 among the defendant's imposition disposition of inheritance tax.

Under the premise that the excess is a part of the deposit money, the cancellation is sought.

(E) The disposition of imposition of April 1, 2013, supra, is referred to as the “instant disposition”).

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 7 (including each number), Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The defendant shall have the right to claim indemnity or deposit money of the inheritee and the old Inheritance Tax and Gift Tax Act.

The Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter referred to as "the Inheritance Tax and Gift Tax Act") (amended by Presidential Decree No. 23591 on February 2, 2012)

under the premise that it constitutes “cashs, deposits and securities” in Article 11(5)1; hereinafter the same shall apply);

In calculating the property presumed to have been inherited, the claim for indemnity or payment of deposit money shall be

The amount of KRW 000 which was withdrawn and KRW 000 which was deposited was added up. However, the Inheritance Tax and Gift Tax Act by the year 1996 includes real estate, movable property, securities, intangible property rights (fishing right, mining business).

권, 채석허가에 따르는 권리 기타 이에 준하는 권리를 포함한다.), 채권, 기타 재산으로 구분하다가 �구 상속세법(1996. 12. 30. 법률 제5193호로 전부개정되기 전의 것) 제7조의2 제3항 D, 1997년부터 현금 및 예금, 부동산 및 부동산에 관한 권리, 유가증권, 무체재산권, 기타 재산으로 구분함으로써 �구 상속세및증여세법 시행령(1996. 12. 31. 대통령령15193호로 전부개정되어 1998. 12. 31. 대통령령 제15971호로 개정되기 전의 것) 제11조 제5항 � 종전에 별도의 재산 종류로 규정하고 있던 채권을 '기타 재산'에 흡수시킨점, ② 상속세및증여세법 시행령 제11조 제5항은 1998. 12. 31. 대통령령 제15971호로 개정되면서 재산의 종류를 현금・예금 및 유가증권, 부동산 및 부동산에 관한 권리, 그 외의기타 재산으로 축소함으로써 무체재산권을 기타 재산으로 분류하고, 현금 및 예금과 유가증권을 하나의 종류로 묶었을 뿐인바, 이에 의하더라도 채권은 '기타 재산'에 해당하는 점, ③ 피고는 국세청에서 환매채의 경우 비록 채권에 해당하지만 유동성이 크다는 이유로 현금 및 예금으로 분류하도록 유권해석(재재산 46014-392, 1997. 11. 18.)하였다는 것을 근거로 내세우고 있으나, 국세청은 환매채 거래의 경우 일정 기간 후에원금과 이자를 지급하기로 하는 약속에 따라 예금처럼 거래가 이루어지므로 그 법적형식은 유가증권의 매매이지만 그 경제적 실질은 담보부 소비대차임을 고려하여, 위탁자 계좌에서 금전으로 인출되지 않는 한 환매채를 매도하더라도 그 매도금액에 대한사용처를 소명할 필요가 없도록 하기 위해 환매채를 현금 및 예금으로 분류한 것일 뿐인 점(위 유권해석 당시에는 현금 및 예금과 유가증권이 다른 종류로 구분되어 있었다), ④ 피고는 유가증권의 평가에 관한 규정인 구 상속세및증여세법 시행령 제58조가 제2항에서 대부금・외상매출금 및 받을 어음 등 채권가액에 대한 평가방법을 규정하고 있는것을 보더라도 채권은 유가증권에 포함된다고 주장하고 있으나, 재산의 종류에 채권이 별도로 규정되어 있던 1997년 이전에도 유가증권의 평가에 관한 규정에서 대부금 채권의 평가방법을 규정하고 있었던 점 G구 상속세법 시행령(1996. 12. 31. 대통령령 제

SECTION 5(6)5R, 5 dd, e, e, of the Act before its wholly amended by 15193

even if the amount of the claim for reimbursement has been deposited, the inheritee shall have a claim for payment of deposit money.

Then, as deposit by dddd or e, the amount equivalent to the deposit money is cash or deposit of the inheritee.

In light of the fact that it cannot be deemed to be a claim for reimbursement or a claim for reimbursement of deposit, etc.

§ 11(5)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act does not include "cash, cash, and securities" but 4

It is reasonable to see that the property constitutes “other property” under subparagraph. Therefore, this is based on a different premise.

The instant disposition is unlawful.

B. Relevant statutes

1. Attached Form 1.

C. Determination

1) Article 15(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013)

"The amount received by the decedent by disposing of the property or the amount withdrawn from the property of the inheritee" shall be inherited.

The property shall be calculated by type within one year before the commencement date and at least 200 million won before the commencement date of inheritance;

Where property is calculated by type within a year and is at least five hundred million won, as prescribed by Presidential Decree.

If the use is objectively unclear, "if the purpose of use is objectively unclear", it shall be presumed inherited and inherited.

Article 11(5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the taxable value of the taxable property shall be included.

kind of property is cash, deposit and securities (title 1), real estate and real estate rights (title 2);

It shall be classified into the property (subparagraph 4) other than the property referred to in subparagraphs 1 and 2. The contents of each of the above provisions and the above provisions.

- - Other

The purpose of the provision is to dispose of inherited property in advance or bear liabilities, and to establish taxation data, such as cash;

It is intended to prevent the intent to avoid inheritance by inheritance of property that is not easy to withdraw.

Comprehensively taking into account the purpose (see, e.g., Supreme Court Decision 2005Du3592, Nov. 10, 2005).

The scope of the property in which the disposal amount or the withdrawn amount is added shall be prior to the disposal or withdrawal of the property.

In light of the legal nature of the property, it is reasonable to deem that the kind of property is separately provided.

C. (In the case of such interpretation, the cash referred to in subparagraph (1) will be presented as property before disposal or withdrawal.

Although it is difficult to dispose of foreign currency in Korean won or in the opposite case, "in case of disposal, etc."

money may also fall under the property before disposal or withdrawal, and the Enforcement Decree of the former Inheritance Tax and Gift Tax Act

11. In light of the history of the amendment under Article 11(5), the structure of the article, and the meaning of the language and text, other than claims on deposit.

(1) The class of claims in the case of a general bond shall be the same as the case of cash, deposit and securities (as referred to in subparagraph (1).

It should be seen as falling under 'other property(No. 4)'.

2) As seen earlier, the inheritee has a claim for reimbursement against Dd and E with respect to D and E.

d, e deposit 6,379,992 won, 66,379,992

A member still has the right to claim the payment of deposit money to the State, and the decedent has made the deposit.

The deposit was received in check or in cash by exercising the right to claim the payment of deposit.

3) If so, the property before the disposal or withdrawal of the check or cash received by the decedent

The legal nature of the deceased is the claim for indemnity or the claim for payment of deposit money, which shall be the old premium.

The claims of the inheritee falling under "other property" in Article 11(5)4 of the Enforcement Decree of the Act shall be the same as those of the inheritee.

(1) The kind of property is different from that of the inheritee's deposits in cash, deposits and securities.

That is, the same kind of claim for indemnity or payment of deposit and deposit of the inheritee.

The Defendant’s disposition of this case by identifying the property is unlawful.

(iv)the calculation of a reasonable amount of tax;

The kind of property is different from that of an inheritee's deposit and indemnity claim or deposit payment claim;

This example is because the amount of disposition or withdrawal within two years prior to the commencement of each inheritance does not amount to 500 million won.

Money withdrawn and deposit money can not be the object of estimated inherited property. Ultimately, before the commencement of inheritance by an inheritee.

The estimated inherited property shall be calculated on the basis of the deposit withdrawal amount of an inheritee within one year; and

of this title. The amount so explained by the predecessor shall be 000 won and the former Inheritance Tax and Gift Tax Act.

Article 11(4)1 of the Enforcement Decree of the Inheritance Tax Act (i.e., KRW 000 - 000 - 0000 - 0000) minus the above deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit deposit amount under Article 11(4)1 (i.e., presumed inherited property (=00 - 0000). Accordingly, when calculating the inheritance tax of this case, the amount of inheritance tax of this case is a total of KRW 000, and the Plaintiff’s voluntary payment tax amount is deducted (i.e., KRW 000 - 000). Accordingly, the specific calculation method is as specified in the calculation of the amount of inheritance tax of attached Form 2.). Accordingly, the portion

3. Conclusion

If so, the plaintiff's claim of this case shall be accepted on the ground of its reasoning, and the first instance court shall raise an objection.

Since the conclusion differs and is unfair, it is revoked, and the disposition in this case exceeds 000 won.

It is decided as per Disposition by the assent of all participating Justices to cancel the part.