Seoul Administrative Court 2014Guhap5729 ( August 22, 2014)

It is denied that the value of the inherited property of the dispute insurance policy is evaluated as the right to receive a regular payment, and disposition decided by evaluating it as the paid-in premium is justifiable.

On the other hand, it is reasonable to calculate the amount by the supplementary evaluation method for the amount of the premium in light of the fact that the amount to be paid is the remaining period as provided in Article 62 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act or the increased amount not paid by Ordinance of the Ministry of Strategy and Finance as provided in Article 62 of the Enforcement Decree

Article 65 of the Inheritance Tax and Gift Tax Act

2014Nu62649 Revocation of Disposition of Imposing Inheritance Tax

LAA

The head of Yangcheon Tax Office

May 20, 2015

June 17, 2015

1. The plaintiff's appeal is dismissed.

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

Cheong-gu and purport of appeal

The judgment of the first instance shall be revoked. The imposition of KRW 183,596,960 (including additional tax) imposed on the Plaintiff on July 10, 2013 shall be revoked.

The reasoning of this court's judgment is as follows, except for the dismissal of a part of the following, and therefore, it is identical to the reasoning of the judgment of the court of first instance. Thus, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of

○ From the sixth bottom of the judgment of the court of first instance, the contents between the eighth to the fifth bottom of the judgment shall be as follows:

Parts used in bulk

『(1) 상속세 및 증여세법(이하 '상속세및증여세법'이라 줄여쓴다)은 제60조 제1항에서 상속재산의 가액은 상속개시일 현재의 시가에 따르도록 규정하는 한편, 제2항에서 '시가'의 의미를 '불특정다수인 사이에 자유롭게 거래가 이루어지는 경우에 통상적으로 성립된다고 인정되는 가액'으로 정의하고, 제3항에서 시가를 산정하기 어려운 경우 에는 해당 재산의 종류��규모��거래상황 등을 감안하여 제61조 내지 제65조에 규정된 보충적 평가방법에 의하여 평가한 가액에 의하도록 규정하고 있다. 보충적 평가방법에 관한 규정은 상속개시일 현재의 시가를 산정하는 것이 어려운 경우 시가에 보다 근접한 가액을 산정하려는 취지에서 마련된 것인데, 조건부권리의 평가에 대하여는 상속세및증여세법 시행령 제60조가, 정기금을 받을 권리의 평가에 대하여는 상속세및증여세법 시행령 제62조가 각 규정하고 있다.

(2) Even if the insurance contract is concluded and the contract becomes effective, the insurance claim is merely an abstract right before the occurrence of the insurance accident, but it is possible to exercise the right from that time by determining the specific right due to the occurrence of the insurance accident (see, e.g., Supreme Court Decision 2007Da19624, Nov. 13, 2008). Since in the case of the pension insurance such as the insurance in this case, "the due date for the payment of the insurance amount" is an insurance accident where a specific insurance claim occurs, the right at the time when the insurance payment date has not yet arrived is an abstract insurance claim whose specific right has not yet been determined as a specific right, which has the nature of the right to receive the fixed amount of the insurance contract. Meanwhile, the policyholder of the insurance contract in this case is in the position to acquire the right to receive the premium before the cancellation period (15 days) expires, and the right to receive the premium in this case can only be exercised when the condition of withdrawal of the subscription has been fulfilled.

(3) The right under an insurance contract acquired by the Plaintiff, etc. through inheritance falls under a case where the market price is calculated in light of the nature of the right. Article 65(1) of the Inheritance Tax and Gift Tax Act and Article 60 subparag. 1 of the Enforcement Decree of the same Act provide that the value of conditional rights constitutes the content of conditions as of the date of commencing the inheritance based on the value of the original right, the certainty of the conditions, and all other circumstances, and the value assessed based on the overall circumstances, may be substituted for the market price. According to the terms and conditions of the insurance contract in this case, the total amount of the paid-in premium may be received where the cancellation of an application is made within 15 days. Accordingly, the amount assessed according to the supplementary evaluation method of the right to refund the premium is the amount equivalent to the paid-in premium. On the contrary, the amount assessed by the amount of entitlement

(4) Inasmuch as the entitlement to receive premiums is premised on the existence of an insurance contract, there is a relationship that is incompatible in the exercise of the right to receive premiums, which is subject to the withdrawal of an application. Ultimately, in assessing the entitlement to receive premiums according to the supplementary evaluation method, one of the appraised values of the entitlement to receive premiums and the entitlement to receive premiums ought to be considered as the market price. As such, the purpose of the supplementary evaluation of the Inheritance Tax and Gift Tax Act is to calculate the amount adjacent to the market price. The purport of the supplementary evaluation is to include only the appraised value of the entitlement to receive premiums, and it is reasonable to stipulate that the value of the entitlement to receive premiums should be determined as the current valuation value of the entitlement to receive premiums after entering into an insurance contract after the lapse of the period of death of the decedent, which is written down on the ground of the occurrence of entitlement to receive premiums, can manipulate the tax base by withdrawing the insurance contract. Therefore, the Plaintiff’s assertion that the appraised value of the entitlement to receive premiums should be determined as the current valuation value of the entitlement to receive premiums after the commencement of the insurance contract.

(5) The instant disposition is lawful.

2. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.