[Case Number] High Court Decision 2015J 1497 (Law No. 30, 2015)
[P] Inheritance [Type of Decision] Re-Investigation
[Determination] One of the summary of the dispute account is the use of the seal impression of the decedent at the time of establishment and withdrawal, and the remaining account does not appear to have been withdrawn and used from the opening date to the opening date of the opening date, it is reasonable to re-examine the who is the actual owner of the dispute account and correct the tax base and tax amount of the inheritance tax according to the result.
[Related Acts and subordinate statutes] Article 2 of the Inheritance Tax and Gift Tax Act / Article 31 of the Inheritance Tax and Gift Tax Act
On February 23, 2013, 2014, when the OO made an applicant on July 18, 2014, the disposition of imposition of the OOO on inheritance tax inherited on February 23, 2013 is conducted by re-investigation as to whether the OOO is a prior donated property, and the tax base and amount
1. Summary of disposition;
A. On February 23, 2013, the claimant inherited the property following the death of father OOO (hereinafter “the decedent”) and reported the inheritance tax on August 31, 2013 with the OOO in the taxable value of inherited property as an OO in the taxable value of inherited property.
B. The OOO (hereinafter “OO”) conducted an inheritance tax investigation on the decedent, and notified the decedent’s heir such as the claimant, etc. of the taxation data to include the OOO in the taxable value of the inheritance. Accordingly, on July 18, 2014, the disposition authority decided and notified the heir, including the claimant, of the inheritance tax OO on February 23, 2013.
C. The claimant appealed and filed an appeal on October 13, 2014 on February 24, 2015.
2. Opinions of the claimant and disposition agency;
A. The claimant's assertion
(1) The term “OO (O) that the decedent transferred to an OO (hereinafter “O”) is opened in the name of the decedent in the name of the spouse to use the name of the decedent as the head of the OO association, and most of the details of the use was deposited in cash by the decedent in the name of his/her spouse to use as the OO association, and this money was not deposited in the heir’s deposit account, including the OO, but not deposited in the OO; the term “OO (OO) account in the name of the heir; and the key issues ① and ② account in combination with the OO account in the process of terminating the deposit account of the decedent and opening a new deposit account in the name of his/her spouse, the key account is that some of the amount was deposited in each spouse’s name in consideration of tax credit, etc.
(b) Opinions of disposition agencies;
In light of the fact that the claimant and the heir acknowledged that the current account was a donated property by the decedent in the course of investigation, and that it is impossible to present specific evidence to prove that the decedent used the withdrawal amount for the borrowed deposit and exercised the real authority over the account, etc. as a borrowed account of the decedent, the OO, the nominal owner of which is a real deposit owner, is deemed to have received a prior donation from the decedent, and thus, a disposition imposed on the property
3. Hearing and determination
A. Key issue
Whether the issue account can be seen as a borrowed account of the decedent
(b) Relevant Acts;
(1) Inheritance Tax and Gift Tax Act;
Article 2. (Objects of Gift Tax Taxation) ① For donated property falling under any of the following subparagraphs as of the date of donation due to the donation by another person (excluding donation becoming effective due to the death of a donor; hereinafter the same shall apply), gift tax shall be levied, as prescribed by this Act:
1. Where a person who has received a donation of property (hereinafter referred to as " donee") is a resident (including a non-profit corporation, the head office or main office of which is located in Korea; hereafter the same shall apply in this paragraph and Articles 54 and 59): All property donated to the resident;
2. Where a donee is a non-resident (including a non-profit corporation, the head office or main office of which is not located in Korea; hereafter the same shall apply in this Article and Articles 4 (2) and 6 (2) and (3)): Property donated by a non-resident, prescribed by Presidential Decree, such as all property in Korea and overseas deposits, overseas installment savings, etc. donated by a resident.
(2) Where income tax under the Income Tax Act and corporate tax under the Corporate Tax Act is levied on a donee with respect to donated property under paragraph (1) (excluding cases deemed donations under Article 45-3), gift tax shall not be levied. The same shall also apply where income tax and corporate tax are non-taxable or exempted under the Income Tax Act, the Corporate Tax Act or other Acts.
(3) The term "donation" in this Act means a gratuitous transfer (including transfer at a remarkably low price) of any tangible or intangible property, the economic value of which can be calculated, in a direct or indirect manner, regardless of the name, form, purpose, etc. of the relevant act or transaction, or an increase of property values of another person by contribution.
Article 7(1)(1) The inherited property pursuant to Article 1 includes all articles having economic value that can be converted into money and all de facto or de facto rights having property value.
Article 13 (Taxable Value of Inherited Property) (1) The taxable value of inherited property shall be the amount calculated by adding the following property value to the value of inherited property after deducting the amount pursuant to Article 14 from the value of inherited property. In such cases, if the amount pursuant to Article 14 exceeds the value of inherited property, such excess
1. The value of property donated by an ancestor to his heir within ten years before the commencement date of the inheritance;
2. The value of property donated by an ancestor to a person other than his/her heir within five years before commencing the inheritance.
C. Facts and determination
(1) According to the petitioner’s request for a trial and the review materials of the agency, the following facts are revealed.
(A) On February 23, 2013, inheritance began due to the death of the claimant's father's father's OOO, the decedent was in office as the head of the Gyeonggi-do OOOO Association for three years from March 8, 2009 to March 7, 2012, the OOO occurred on November 10, 201, and died on February 2, 2013, and the details of the inheritors, including the claimant, are as follows:
(b) The details of the recovery of donated property for which a report is omitted after the investigating authorities conducted an inheritance tax investigation on the decedent are as follows:
(C) The claimant asserts that the issue account of the heir's OO among the prior donated property recovered by the investigating authority is the deceased's borrowed account, and the statement presented by the claimant is as follows:
On January 18, 2011, the decedent opened the key ① account in the name of the relevant OOO on July 10, 201, and affixed the seal impressions of the decedent in the column of the transaction application. On January 18, 2011, the decedent deposited OO won in cash at the opening date of the key ② account, affixed the seal impressions of the decedent at the time of withdrawal. The specific details of the key ② account are as shown below.
(d) The main contents of the confirmation document of the heir that the investigating authority has received in the course of the inheritance tax investigation are as follows:
(F) The fact that the decedent received OO from November 10, 201 to February 23, 2013 is confirmed by a certificate of hospitalization, etc.
(2) Comprehensively taking account of the above facts and relevant legal rules, the key issue ① is that the account is opened under the name of OO and affixed the seal impression of the decedent and used the seal impression of the decedent at the time of withdrawal when the decedent held office as OOO, and the account appears to have been deposited into the account of the heir or used for the acquisition of real estate. The key issue ① is that the account balance is transferred to the account of the decedent to the account of the decedent. The key issue ② and ③ account is that the deposit balance is not verified by the deposit account of the decedent after the commencement of the inheritance (23 February 23, 2012) and the fact that the account was withdrawn or used by the deposit account of the decedent after the commencement of the inheritance on July 10, 2012 is reliable, so it is reasonable for the disposition authority to re-examine the account, such as the withdrawal and use of the key issue account, the actual owner, etc., and to re-examine the inheritance tax base and tax amount in accordance with this result.
This case shall be decided as ordered in accordance with Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes, because the petition for appeal is well-grounded as a result of the review.