Whether the obligation to refund the rental deposit shall be apportioned in proportion to the value of the members' investment.

임대차보증금 반환채무 중 피상속인의 지분에 해당하는 채무를 계산함에 있어서는 조합 내부의 손익분배비율을 적용하여 계산된 채무액이 상속가액에서 빼는 피상속인 의 채무가 된다고 봄이 타당하다

Article 1 of the Inheritance Tax and Gift Tax Act

The revocation of revocation of the imposition of inheritance tax by the District Court 2018Guhap10373

○ Kim

AA Head of the Tax Office

.03.21

.04.25

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 43,280,980 (including additional tax) against the Plaintiff on April 1, 2017 shall be revoked.

1. Details of the disposition;

A. A. On October 7, 2015, the decedent’s maximumAA (hereinafter “the decedent”) died, and on the other hand, the Plaintiff, his/her spouse, the Plaintiff’s maximum right to children, and DoD succeeded to the property of the decedent. At the time of the death, the decedent owned the instant land of 948 OO-Gu O-dong 948 square meters (hereinafter “O-dong 748.4 square meters”) and owned the building of neighborhood living facilities (hereinafter “the instant building”) with the size of 3,546.86 square meters on the ground and 65 square meters on the ground, and owned the building of 1/2 shares in the Plaintiff and 1/2. The Plaintiff and her children agreed on the division of inherited property, and completed inheritance registration on April 18, 2016, and inheritance registration on the Plaintiff’s share of the instant building.

B. On April 28, 2016, the Plaintiff and their children reported and paid inheritance tax of KRW 354,838,995 to the Defendant on the inherited property of the inheritee.

C. From July 4, 2016 to December 8, 2016, the Defendant conducted a tax investigation on the decedents, and with respect to the amount of inheritance tax reported by the Plaintiff, ① 625,30,000 for the lessee of the instant building.

In calculating the taxable value of inherited property, 164,203,790 won exceeding 50% (312,650,000 won) out of the obligation to return the lease deposit (hereinafter referred to as "the obligation to return the lease deposit of this case") has been erroneously appropriated as the obligation of the decedent to be deducted in calculating the taxable value of inherited property, and 22,359,851 won was omitted in calculating the taxable value of inherited property and donated property in advance, and based on this, the inheritance tax was determined on December 19, 2016, and the Plaintiff notified the Plaintiff of the additional pre-announcement of taxation of the inheritance tax of KRW 234,686,030 (including additional tax).

D. On January 17, 2017, the Plaintiff dissatisfied with the notice of taxation and filed a request for pre-assessment review with the Defendant on January 17, 2017. On February 14, 2017, the Defendant rendered a re-assessment decision on the pre-announcement of taxation and maintained the portion of excess appropriation of inherited property as seen earlier, and calculated the total inheritance tax to be borne by the Plaintiff on the basis of the calculation of inherited property as KRW 245,701,824, and calculated the total inheritance tax to be borne by the Plaintiff as KRW 512,202,227 (including additional tax) and then deducted the inheritance tax paid by the Plaintiff on April 1, 2017 (hereinafter referred to as “pre-determination”).

E. On June 2, 2017, the Plaintiff dissatisfied with the initial disposition and filed an objection with the director of the regional tax office, and the foregoing objection was dismissed on August 28, 2017, the Plaintiff filed a request for re-determination with the Commissioner of the National Tax Service on October 17, 2017. On December 29, 2017, the Commissioner of the National Tax Service erred by deeming that the initial disposition was omitted in KRW 245,701,824, and included it in the taxable value of inherited property. However, the remainder was determined to be reasonable, by excluding KRW 245,701,824, supra from the taxable value of inherited property, thereby correcting the tax base and tax amount, and dismissing the remainder of the applicant’s request.

F. On January 2018, the Defendant, according to the decision of the Commissioner of the National Tax Service, excluded KRW 245,701,824 from the original disposition’s taxable value of inherited property, and disposed of KRW 157,363,247 (including additional taxes) which the Defendant initially imposed on the Plaintiff at KRW 43,280,980 (including additional taxes) (hereinafter “the initial disposition after such reduction”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The decedent, among the instant land and the instant building, contributed 1/2 shares, and the Plaintiff engaged in real estate leasing business as the partnership until the date of commencing the instant inheritance, while the heir, including the Plaintiff, still has succeeded to the status of the inheritee and still maintained the said partnership. As such, the obligation to return the lease deposit of this case should be recognized in proportion to the value of the property invested by the Plaintiff and the decedent as the partnership property when calculating the amount of the inheritee’s obligation to return the deposit of this case’s property. The value ratio of the property invested by the decedent and the Plaintiff as partnership property at the time of commencing the inheritance is 476,853,780 won (i.e., the amount of the inheritee’s obligation to return the lease deposit of this case’s 625,300,000 won x 766.26%). Since the Defendant’s obligation to return the deposit of this case’s property is unlawful by applying only 300% of the amount of the lease deposit of this case’s property owned by the inheritee.

(2) The defendant's assertion

The Plaintiff and the inheritee do not run the building leasing business as a cooperative, and the obligation to return the lease deposit of this case is only the obligation arising from the building of this case shared by the Plaintiff and the inheritee. Since the Plaintiff and the inheritee held 1/2 shares in the building of this case, the inheritee’s obligation deducted from the taxable value of inherited property is KRW 312,650,000, which is 50% of the lease deposit of this case, and there is no error in the disposition of this case.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Issues of the instant case

The key issue of this case is ① Whether the obligation to return the lease deposit of this case can be deemed as the obligation of the decedent and the association whose members are the Plaintiff, ② If the obligation to return the lease deposit of this case is deemed as the partnership obligation, whether the obligation to return the lease deposit of this case should be distributed in proportion to the amount of the investment of the union members when calculating the obligation of the decedent who is deducted from the taxable

2) Whether the obligation to return the lease deposit in relation to the building of this case is the obligation to be borne by the decedent and the association whose members are the plaintiff

Comprehensively taking account of the purport of the entire arguments in the statements in Gap evidence Nos. 1, 3 and Eul evidence Nos. 1 through 5, the joint business which carries on real estate rental business in the name of "O building" between the decedent and the plaintiff on June 16, 199.

The building of this case was constructed on February 28, 200 and owned 1/2 shares on the land of this case and leased the building of this case. During this process, the decedent and the plaintiff were liable for the repayment of the deposit for lease of this case.

Meanwhile, the lease agreement entered into by the lessor as the representative Plaintiff (or the decedent) and one other; ③ the decedent and the Plaintiff submitted the distribution ratio of profits from the operation of the OO building to the Defendant from 2010 to 2014, to the Defendant by joint business operators: 50, and reported and paid the comprehensive income tax on the basis thereof; ④ The financial statements of the above OO building, the instant land and the instant building are the assets thereof, and the obligation to return the lease deposit.

the fact that each has been reflected in the debt can be recognized.

According to the above facts, it is reasonable to view the obligation to return the lease deposit of this case as the obligation to return the lease deposit of this case to the decedent and the plaintiff as its members, since the decedent and the plaintiff jointly established a real estate rental business by mutual investment and the plaintiff are liable for the repayment of the lease deposit of this case in the course of its operation.

3) Whether the obligation to refund the lease deposit of this case should be divided in proportion to the value of the company's investment

A) Relevant legal principles, etc.

In cases where one member of a partnership dies, the partnership relationship is naturally withdrawn pursuant to Article 717 of the Civil Act, and the status of the partnership member who died, barring any special agreement, is not succeeded to his/her heir. Thus, the partnership-owned property, which is the property of the partnership, shall belong to the partnership's joint ownership where at least two remaining partners exist, and where the remaining members are one, the remaining union member shall belong to the sole ownership of the remaining union member. In this case, barring special circumstances, the heir shall have the right to claim a refund of an amount equivalent to the partnership's share out of the partnership property appraised on the basis of the active property of the partnership at the time of commencing the inheritance and the property status reflecting the small property (see, e.g., Supreme Court Decision 2015Du60167, May 12, 2016). Such calculation is premised on continuing business, and the ratio of shares of partnership property, which is the property of the partnership member, shall be appraised in proportion to the operating price including simple trading price, and the ratio of partnership members shall be determined by 20.

이러한 법리에 비추어 보면, 조합계약에서 조합원의 지위가 상속인에게 승계하기로 하는 약정이 있어 상속인들에게 피상속인의 조합원 지위가 상속되었다고 하더라도 이는 조합이 청산되는 경우가 아니므로 상속인들이 상속받는 조합원의 지분을 계산함에 있어서는 피상속인이 조합에서 탈퇴할 당시 반환받을 수 있는 지분정산청구권을 계산하는 것과 마찬가지로 원칙적으로 '조합 내부의 손익분배비율'에 따라 지분가액을 산정함이 타당하다. 결국 조합채무 중 피상속인의 지분에 해당하는 조합채무를 산정함에 있어서는 피상속인의 사망으로 피상속인이 조합에서 탈퇴하는 경우나 상속인들에게 조합원 지위가 승계되는 경우 모두 동일하게 조합 내부의 손익비율을 별도로 약정하였다면 그에 따라, 조합 내부의 손익비율을 따로 정하지 아니하였다면 출자가액의 비율에 따라 이를 계산하여야 할 것이다.

B) Determination

(1) In this case, we examine whether there was an agreement on the internal profit and loss ratio between the Plaintiff and the inheritee.

갑 제1호증, 을 제4호증의 각 기재에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사실과 사정들에 비추어 보면, 원고와 피상속인은 조합 내부의 손익분배비율을 조합성립 당시 각자가 출자한 재산가액과는 달리 50 : 50으로 약정하였다고 인정할 수

section 1.

(가) 소득세법 제43조 제1항, 제2항에 의하면, 사업소득이 발생하는 사업을 공동으로 경영하고 그 손익을 분배하는 공동사업의 경우 해당 사업을 경영하는 장소별로 그 소득금액을 계산한 후 그 소득금액을 해당 공동사업을 경영하는 각 거주자 간에 약정된 손익분배비율에 의하여 분배되었거나 분배될 소득금액에 따라 각 공동사업자별로 분배

한다고 규정하고 있다. 이에 따라 공동사업자의 경우 소득세를 신고ㆍ납부할 때 공동사업자별 분배명세서를 제출하면서 그들 사이에 약정된 손익분배비율을 기재하여야 하는데, 원고와 피상속인은 2010년부터 2014년까지 이러한 공동사업자별 분배명세서를 제출하면서 그 손익분배비율을 50:50으로 기재하였다.

(B) Since 2010, it seems that the real estate rental business was in fact in charge of the plaintiff's mixed management, and there is room to recognize that the plaintiff made a considerable labor investment in the above union in addition to the investment of the 1/2 shares in the building of this case. In other words, it is contrary to the transaction concept that the agreement between the plaintiff and the decedent on the ratio of distribution of profits and losses, different from the investment in real estate, is contrary

It is not easy to readily conclude that it was a precedent.

(C) From 2011 to 2015, the Plaintiff submitted the details of expenditure of the profits accrued from the lease of the instant building from 2015 to 2015. According to the above data, the amount of expenditure of the inheritee for the same period is KRW 457,075,890, the Plaintiff’s amount of expenditure was KRW 312,29,060, and the Plaintiff’s amount of expenditure was KRW 171,000,000, and the Plaintiff’s amount of expenditure was indicated as the Plaintiff’s salary according to the disbursement resolution. The Plaintiff’s amount of expenditure is indicated as the Plaintiff’s payment in the above data. The amount of expenditure of the decedent’s and the Plaintiff’s profit distribution was 48:513 [the amount of expenditure of the Plaintiff’s living expense is 58:424) even if the decedent and the Plaintiff used the revenue jointly with the decedent’s and the Plaintiff’s amount of expenditure. Rather, it appears that the amount of profit and loss distribution was distributed according to the above ratio of profit distribution.

(2) 이러한 사실을 앞서 본 법리 등에 비추어 볼 때, 원고를 포함한 피상속인의 상속인들이 여전히 조합을 유지하고 있다고 하더라도, 이 사건 임대차보증금 반환채무 중 피상속인의 지분에 해당하는 채무를 계산함에 있어서는 위 조합 내부의 손익분배비율인 50 : 50을 적용하여야 하고, 이렇게 계산된 채무액이 상속가액에서 빼는 피상속인의 채무가 된다고 봄이 타당하다. 이 사건 임대차보증금 반환채무의 50%는 312,650,000원이고, 이 사건 처분이 이 사건 임대차보증금 반환채무의 50%인 312,650,000원을 피상속인의 채무로 인정하여 내려진 것임은 앞서 본 바와 같다. 따라서 이 사건 처분에 상속세과세가액에서 공제되는 피상속인의 채무를 잘못 계산한 위법이 있다고 보기 어려우므로, 원고의 주장은 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.