[1] Method of giving notice of inheritance tax to co-inheritors

[2] The validity of a disposition imposing inheritance tax, which is known to one person with knowledge of joint inheritance solely by inheritance (=part of validity)

[3] Whether the inherited property omitted at the time of the imposition disposition is also included in the subject of the adjudication of the revocation disposition of inheritance tax (affirmative)

[4] The base date for determining whether the disposition prior to the commencement of inheritance constitutes a disposition included in the taxable value of inherited property

[1] A notice of tax payment that has the effect of specifically identifying each of the tax liability to co-inheritors should be classified and specified individually to each of the co-inheritors, and it is unlawful to impose the total inheritance tax on the inheritor in a lump sum.

[2] In a case where a joint inheritance indicates the heir as one and only the heir imposed and notified the inheritance tax on the heir, it is reasonable to view that the taxation disposition does not necessarily become null and void or illegal, and that the heir was a valid taxation disposition with respect to one inheritor.

[3] The term "tax assessment" means a procedure for determining a taxation claim that has already been established objectively and abstractly by satisfying the taxation requirements, and a lawsuit seeking revocation of a taxation disposition is the substantive and procedural illegality of the taxation disposition. The subject of the review is whether the tax base or tax amount assessed by the tax authority exceeds the actual tax base or legitimate tax amount, and thus, it should be determined by all arguments and data submitted by the tax authority until the closing of argument in the revocation lawsuit. Thus, if part of the inherited property is not included in the tax base for calculating the inheritance tax, if it is not included in the calculation of the tax base for calculating the inheritance tax, the legality of such disposition shall be determined by calculating the inheritance

[4] Article 7-2 (1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990) which provides for the inclusion of the taxable value of the property disposed of prior to the commencement of inheritance is a provision to prevent the act of avoiding the burden of inheritance by the previous disposition. Thus, the decision of disposal and the application of the disposal shall be determined as of the time of such disposal. In case of disposal of the property by sale, it is a sales contract, and it is the basic date.

[1] Articles 18 (see Article 3 of the current Inheritance Tax and Gift Tax Act) and 25-2 (see Article 77 of the current Inheritance Tax and Gift Tax Act) of the former Inheritance Tax Act (amended by Act No. 4662 of December 31, 1993) / [2] Articles 18-3 (see Article 3 of the current Inheritance Tax and Gift Tax Act) and 25-2 (see Article 77 of the current Inheritance Tax and Gift Tax Act) of the former Inheritance Tax Act (amended by Act No. 4662 of December 31, 1993) / [3] Article 19 of the Administrative Litigation Act / [4] Article 7-2 (1) (see Article 15 of the current Inheritance Tax and Gift Tax Act) of the former Inheritance Tax Act (amended by Act No. 4283 of December 31, 190)

[1] Supreme Court Decision 93Nu3387 delivered on May 27, 1993 (Gong1993Ha, 1935), Supreme Court Decision 93Nu10316 delivered on December 21, 1993 (Gong1994Sang, 558), Supreme Court Decision 96Nu4749 delivered on March 25, 1997 (Gong1997Sang, 1269) / [3] Supreme Court Decision 78Nu345 delivered on October 14, 1980 (Gong1980, 1330), Supreme Court Decision 89Nu3854 delivered on March 27, 199 (Gong190, 102) / [4] Supreme Court Decision 96Nu38539 delivered on April 18, 195 (Gong1994, 199)

Park Young-young (Attorney Kim Byung-jin, Counsel for the plaintiff-appellant)

Western director of the tax office

Seoul High Court Decision 95Gu4201 delivered on April 24, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The plaintiff's ground of appeal No. 1 and the defendant's ground of appeal No. 2 are examined.

A. A tax notice, which has the effect of specifically confirming each of the tax liability to co-inheritors, shall be classified and specified individually for each co-inheritors, and the total amount of inheritance tax shall be imposed on the inheritor (see, e.g., Supreme Court en banc Decision 93Nu10316, Dec. 21, 1993; Supreme Court Decision 93Nu3387, May 27, 1993). However, if a co-inheritors jointly inherited property but only one inheritor was assigned and notified the inheritance tax, it shall not be deemed that such taxation disposition has been null and void as a matter of course or unlawful, and it is reasonable to view that the inheritor was a valid taxation disposition as to only one inheritor.

Therefore, the instant disposition against the Plaintiff 1 among co-inheritors is not a natural invalidation or an unlawful disposition. However, if there is a part in excess of the scope of a legitimate tax amount, it shall be deemed that there exists a cause for revocation only for that part.

The court below ruled that the disposition of this case was lawful with the notice of tax payment to the plaintiff with the knowledge that the plaintiff is a sole heir, and there is no error in the misapprehension of judgment or violation of the rules of evidence as otherwise alleged in the ground of appeal. The plaintiff's argument on this issue is without merit.

B. A taxation disposition is a procedure to determine a taxation disposition that has already been established objectively and abstractly by satisfying the taxation requirements, and the lawsuit seeking revocation of a taxation disposition is a procedure to determine the substantive and procedural illegality of the above taxation disposition as the grounds for revocation. Since the tax base or tax amount assessed by the tax authority exceeds the actual tax base or legitimate tax amount, the determination shall be made based on all arguments and materials submitted until the closing of argument in the revocation lawsuit (see, e.g., Supreme Court Decisions 78Nu345, Oct. 14, 1980; 89Nu3854, Mar. 27, 1990).

According to the records, the plaintiff was co-inheritors of the deceased deceased's deceased's deceased's deceased deceased's deceased deceased's deceased's deceased's deceased's deceased's deceased's co-inheritors, and the disposition of this case was known to the plaintiff as a sole heir, and it is recognized that part of the real estate, deposit claims, cash, etc. among the jointly inherited property was not included in the tax base for calculating the inheritance tax amount. Thus, the legality of the disposition of this case can be determined only after calculating the inheritance tax amount based on all inherited property, including the omitted property, and then calculating the tax amount that the plaintiff is liable to pay according to

Nevertheless, the court below excluded inherited property omitted at the time of the disposition of this case from the tax base in calculating the scope of the legitimate tax amount to be paid by the plaintiff, and erred by misapprehending the legal principles on the subject of the judgment on the revocation lawsuit (However, in this case, the overlapping part should be excluded from the inherited property after examining whether the omitted deposit claim was formed as the disposal price of the property disposed of within one year before the death). All arguments pointing this out by the plaintiff and the defendant are with merit.

2. We examine the Plaintiff’s ground of appeal No. 2.

The court below held that, within three years prior to the commencement of inheritance, it is proper that the property donated to the plaintiff by the deceased deceased deceased will be included in the taxable value of inherited property pursuant to Article 4 (1) of the Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990; hereinafter the same shall apply), and the Supreme Court Decision 85Nu479, Oct. 22, 1985 ruled that this provision shall not apply to the donated property, on the ground that it is natural that the donated property is included in the taxable value of inherited property pursuant to this provision, and it is not converted into the inherited property. The argument is without merit.

3. We examine the Defendant’s ground of appeal No. 1.

Article 7-2 (1) of the Inheritance Tax Act is a provision to prevent the act of avoiding the burden of inheritance tax by the previous disposition before death, and its application should be determined as of the time of disposal. In the case of disposal of property through sale, it is a sale contract when the disposal is conducted, and it shall be the base date (see Supreme Court Decisions 94Nu9719, Mar. 14, 1995; 88Nu3185, Feb. 14, 1989).

In the same purport, the decision of the court below that the sale contract date of the land stated in the annexed list No. 6 attached to the court below is one year before the commencement date of inheritance, and that the disposal price of the land shall not be included in the taxable value of inherited property pursuant to this provision is correct, and there is no violation of the law

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)