Cho Jae-2013-west-5026 (Law No. 19, 2015)

The agreement of this case can be seen as the first agreement for consultation division, so the disposition of this case is unlawful.

In light of the fact that the agreement prepared by the heir of this case contains the content of agreement on the distribution of inherited property with respect to the land of this case, and that it is mediated that the agreement of this case is not a gift among the inheritors, it can be viewed as an agreement division of inherited property, and thus, the disposition of imposition is unlawful.

Article 31 of the Inheritance Tax and Gift Tax Act

2015Guhap67533 Revocation of Disposition of Imposing transfer tax, etc.

AA, PostalB, thisCC

Head of the regional tax office other than 1

January 29, 2016

March 18, 2016

1. The disposition of imposition in the separate sheet No. 1, which the Defendants made against the Plaintiffs, shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On May 21, 1986, MaF, who is the husband, MaE, MaB, and MaF, the father of MaF, died on May 21, 1986. On September 12, 1986, MaF, which is the inherited property of MaF (hereinafter referred to as MaF), Seongdongdong-gu Seoul, the property of xxxxx and xx sitex sitexm area (hereinafter referred to as 'each of the above land'), MaA completed the registration of ownership transfer (hereinafter referred to as 'the shares in this case') with respect to 3/5 shares (hereinafter referred to as 'the shares in this case'), MaE completed the registration of ownership transfer due to inheritance with respect to 2/5 shares of each property (hereinafter referred to as 'the registration of inheritance of this case').

B. On November 18, 2004, the Plaintiffs and ESE (hereinafter collectively referred to as “heirs”) agreed to distribute the land of this case to Plaintiff AA 40%, EE 40%, Plaintiff UB 10%, and Plaintiff KimCC 10%, and distributed the amount of money excluding all the expenses and taxes, etc. out of the leased revenue according to the agreed ratio” (hereinafter referred to as the “instant agreement”).

C. On July 28, 201, Plaintiff OE and OE sold KRW 40,36,75,00 of the instant land and the instant building to MedD (hereinafter “MedD”) (hereinafter “the instant sales contract”) on July 28, 201, and on March 7, 2012, Plaintiff OE changed the said sales contract to receive additional purchase price of KRW 300 million. Plaintiff OE received KRW 18,479,414,120 of the price from MedD until March 21, 201, Plaintiff OE reported and received KRW 16,146,702,00 of the price, Plaintiff E KimB, Kim Yong-B, 30,319,419,400 of the Plaintiff’s respective shares in the Plaintiff’s transfer income tax (the Plaintiffs reported and paid KRW 16,30,310,410,410,510 of the instant contract).

D. The Defendants denied the transfer of 1/10 shares of the Plaintiff UB and KimCC and transferred 3/5 shares of the land of this case as the registration. In response, the Defendants received 24,520,053,00 (=40,366,75,000 + 3/5 + 300,000,000) as the price, and among them, each of the Plaintiff UB and KimCC included 4,083,816,880 won (the above 3,020,319,40 won + 1,063,497,451, hereinafter referred to as “the gift property of this case”) in the name of the Plaintiff UB and KimCC, and each of the instant disposition of imposition and disposition of transfer income tax of the Plaintiff 1/B, imposition and disposition of transfer income tax of each of the instant case (hereinafter referred to as “the instant disposition of imposition and disposition of transfer income tax of each of the instant case”).

2. Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

3. Whether the instant disposition is lawful

(a) Facts of recognition;

1) On September 12, 1986, immediately after May 21, 1986, the E and EA completed the instant inheritance registration of 3/5,2/5 shares in each of the instant land under the consent of the Plaintiff PostalB and KimCC on September 12, 1986, when the FF died.

2) On February 28, 2003, Plaintiff OA operated GG remote industry corporation in a factory building located in the instant land, and closed the business due to business failure on February 28, 2003, and began the lease business of the instant land and the instant building (hereinafter referred to as “instant real estate”). The inheritors asserted their rights in relation to the rental income and the heir agreed on November 18, 2004 regarding the reversion of the FF’s inherited property and the rental income.

3) On April 7, 2009, the EE filed a lawsuit against the Plaintiff for partition of the pertinent property on the instant real property, and on November 23, 2009, the EE calculated the price of the instant real property at KRW 39.577 billion and calculated the price of the instant real property at KRW 39.525 million, and the EE paid KRW 21.895 billion in exchange for payment by the EE, until June 30, 2010, to the person indicated as the person who has obtained the consent to the EE or the land use consent, and ② the EE was established a mediation (hereinafter referred to as the “prior adjustment”).

4) On December 28, 2009, EE sold the instant real estate to Medidi, and on May 3, 2010, MeE completed the registration of transfer claim provisional registration on Plaintiff OE’s 3/5 portion due to purchase and sale reservation.

5) On May 13, 2010, Plaintiff UB and KimCC filed a lawsuit seeking cancellation of the above provisional registration against MaD on the other hand, and they filed a criminal complaint against Plaintiff OA and MaE on the charge of breach of trust, etc. The prosecutor, on October 15, 2010, knew of the agreement between Plaintiff UB and MaE to sell the instant real estate and give money equivalent to their shares to Plaintiff OB and E, and implicitly consented to the disposition of non-prosecution.

6) In a lawsuit seeking cancellation of the above provisional registration, the conciliation was concluded on October 20, 2010 (hereinafter referred to as “afterward conciliation”) and the main contents of the instant case are as follows.

2. (a) The Plaintiff OA shall pay each of the 2.966 billion won (the transfer income tax imposed on the DoB and KimCC shall be borne by the DoB and KimCC, and the remaining amount shall be agreed upon) to the DoB and KimCC under a condition precedent that the payment of the transfer price to be received from the DoE based on the prior adjustment is a condition precedent.

C. It is confirmed that the payment of the money by Plaintiff OA to Plaintiff UB and KimCC as above 2. A is the payment of each inheritance share of Plaintiff UB and KimCC to the instant land, and that it is not a donation.

4. Pursuant to the Agreement dated November 18, 2004, the EE shall transfer 40% of the x shares x shares x in the Sungnam-gu, Sungnam-si, Sungnam-si, the title of which is held by the EE to OE, to the Plaintiff PB and KimCC each 20%.

[Ground of Recognition] Unsatisfy, Gap evidence 6 to 10, Eul evidence 5, before pleadings

The purpose of body

B. As to the imposition of gift tax of this case

1) In light of the following facts and circumstances revealed by adding the aforementioned facts and the purport of the entire pleadings, the instant agreement can be deemed as a division of inherited property among the inheritors.

① The instant agreement (Evidence A No. 4) written by the inheritors states that the inheritors agree to distribute the real estate, including the instant land, to the extent of A 40%, EE 40%, PostalB 10%, MaCC 10%, and MaCC 10%, with respect to the real estate, which is inherited property including the instant land. In addition, the agreement on the distribution of the leased income related to the instant real estate, including the agreement on compensation for the payment of children, educational expenses, and child support, and the details on the apportionment of debt, such as bank loans. The agreement on the overall division of inherited property has the form of a

② As Plaintiff UB and KimCC began to operate the instant real estate for 18 years, it was necessary for Plaintiff OA to maintain the right based on their respective inheritance shares, such as concerns about the disposal of the instant real estate and distribution of rental income.

③ EE also participated in the instant agreement, and there is no change in its share ratio of the instant land.

④ According to the Civil Act in force at the time of the deceased’s death, the statutory inheritance portion of the Plaintiff A, EE, Plaintiff UB, and KimCC is about 43%, 43%, 7%, 7%, and 40%, 40%, 40%, 10%, and 10%, which are considerably different from the statutory inheritance portion.

⑤ Under the latter adjustment clause, the payment of the amount to Plaintiff UB and KimCC as described in the above 2. A is confirmed to be the payment of the respective inheritance proceeds of Plaintiff UB and KimCC to the land in this case, and not the donation.” The payment of the amount to Plaintiff UE under the agreement dated November 18, 2004, and the payment of the amount to Plaintiff UE to Plaintiff UB and KimCC is based on the premise that the ownership of the above shares to the land in Seongbuk-dong, which was agreed to be distributed by Plaintiff UE to Plaintiff UB, KimCC, or UE is already attributed to them.

6. In the instant sales contract, Plaintiff UB and KimCC received an amount equivalent to the share ratio under the instant agreement out of the sales amount from Medi, not Medi, from Medi.

2) Therefore, it is reasonable to deem that the ownership of 1/10 shares of each of the instant lands was substantially attributed to Plaintiff DaB and KimCC according to the instant agreement constituting a division of inherited property. The donated property of this case is the amount equivalent to 10% of the instant purchase price, which is the share ratio of land owned by Plaintiff DoB and KimCC, and Plaintiff DoB and KimCC acquired it in return for the disposal of their own land shares, and thus, it cannot be deemed that the said amount was donated from Plaintiff YA. The instant disposition based on this premise is unlawful.

C. As to the instant disposition of transfer income tax and local income tax

As seen earlier, Plaintiff OA, UB, and KimCC actually owned 40%, 10%, 10%, and 10% of the instant land among the instant land under the instant agreement. As such, the imposition of the transfer income tax and the local income tax on the premise that Plaintiff OA sells the instant land as the owner of 60% of the instant land.

4. Conclusion

The plaintiffs' claims against the defendants are justified, and all of them are accepted.