National Tax Service Review Inheritance 2011-001 (O. 22, 2011)

Since the property held by the decedent is confirmed as the property held by the decedent, inheritance tax is legitimate.

Since will notarial deeds do not have been prepared to prevent ownership disputes among heirs, but contain the purport that the decedent distributes his or her own property to the heirs, it is reasonable to view that it is the property trusted by the decedent in the future of the plaintiffs.

2011Guhap31277 Revocation of Disposition of Levying Inheritance Tax

Long-gu et al.

Samsung Head of Samsung Tax Office

December 9, 2011

January 13, 2012

1. All of the plaintiffs' claims are dismissed.

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

On October 11, 2010, the Defendant revoked each disposition imposing inheritance tax of KRW 239,913,211 against the Plaintiff, KRW 254,49,833, and KRW 57,684,549 against the Plaintiff headCC.

1. Details of the disposition;

The following facts may be admitted if there is no dispute between the parties, or if the entries in Gap evidence 1-8, 10, 12 (including each number; hereinafter the same shall apply) and Eul evidence 1 are combined with the purport of the whole pleadings:

A. On May 14, 1991, the Plaintiffs’ DudD died on May 14, 1991. At the time of death of DudD’s children, five (5) children, such as KimK, etc. (hereinafter “heirs”) registered as the head of the family register at the time of death of DudD, and the mother of other children except Dudddd’s children and Kim K, etc. (hereinafter “heirs”) registered as the head of the family register at the time of death of DudD’s children, on November 9, 1991, the Defendant reported E to the Defendant and reported 1,949,93,592 won of inheritance tax.

B. Around May 1993, the director of the Seoul Regional Tax Office notified the Defendant that the inheritance tax should be levied on the ground that there was an error in the filing of the inheritance tax return, such as the omission of part of the inheritance property as a result of the tax investigation on the said return of inheritance tax. On July 1, 1993, the Defendant imposed and notified the inheritor of KRW 3,31,987,060 of the inheritance tax with the value of the inherited property as KRW 6,292,59,07.

C. After that, the defendant found real estate in the plaintiffs' names and the inheritors' names entered in the notarial deeds of Do Governors (No. 771, 1991, hereinafter referred to as the "notarial deeds of this case"), and deemed that the plaintiffs and inheritors omitted their return of the above inherited property, and calculated the tax base of KRW 2,956,285,280 in addition to the inherited property, the amount of KRW 8,526,638,953 on October 15, 2001 by adding the tax base of KRW 8,526,638,953 to the inherited property. On July 20, 2002, the defendant imposed and notified the plaintiffs and inheritors of KRW 2,408,74,470 in a lump sum, and reduced the inheritance tax amount to KRW 2,284,426,140 on July 20, 202 (hereinafter referred to as the "first disposition").

D. The plaintiffs filed a lawsuit against the defendant seeking revocation of the first disposition as the court 2002Guhap28231. The court rendered a judgment revoking the first disposition on May 1, 2003 on the ground that "the first disposition was made by dividing the amount of tax by inheritor and imposing it in a total sum without specifying it." The appellate court rendered a judgment revoking the first disposition. The appellate court rendered a judgment dismissing the appeal (Seoul High Court 2003Nu8748, Dec. 5, 2003) and the above judgment became final and conclusive around that time.

E. After that, the Defendant determined the total amount of tax imposed on the Plaintiffs and their inheritors as KRW 2,284,426,140 in accordance with the above final judgment, and divided it in proportion to the ratio of possession of each inherited property. On March 4, 2004, the Defendant notified the Plaintiff headA of KRW 407,320,645 in proportion to the ratio of possession of each inherited property, KRW 571,344,612 in relation to Plaintiff headB, and KRW 91,273,068 in relation to the Plaintiff headCC (hereinafter “the second disposition”).

F. The plaintiffs filed a lawsuit against the defendant seeking revocation of the second disposition under this court 2005Guhap47000. This court rendered a judgment revoking the second disposition in the appellate court, on the ground that there is a mistake that the title holder of the real estate was bequeathed even if the title holder of the second disposition was not bequeathed on March 31, 2006, and thus, it is unlawful within the scope of the second disposition. However, in the lawsuit as stated in paragraph (g) that the heir raised a lawsuit against the plaintiff, such as revocation of the disposition of revocation of the first disposition, the heir's inheritance, which is a premise for calculating the legitimate amount of inheritance tax against the plaintiffs, constitutes a case where the legitimate amount of tax cannot be calculated because the heir's inheritance, which is a premise for calculating the legitimate amount of inheritance tax, is not final and conclusive, and at the appellate court, the dismissal of the appeal (Seoul High Court 2006Nu9889, Jun. 26, 2007) was dismissed (hereinafter referred to as "previous appeal").

G. Meanwhile, the inheritors filed a lawsuit against the Defendant seeking revocation of the disposition of imposition of inheritance tax (hereinafter referred to as "related imposition disposition") imposed on the inheritor (KK 54,622,255 won, 161,338,677 won, 119,140,038 won, 200,538, 207 won, 38,537 won, HH 88,843,308 won, 204, 2971) (hereinafter referred to as "relevant disposition of imposition"). The appellate court rendered a judgment revoking the relevant disposition of imposition on January 18, 2006. The portion of the first instance court's judgment on the EE, 62,255 won, 161,38,677 won, 119,140,038 won, 200, 206, 2006, 207, 2006, 2006, 364.74).

H. On October 11, 2010, the Defendant issued a notice of each inheritance tax of KRW 239,913,211 against the Plaintiff head-A, KRW 254,49,833 against the Plaintiff head-B, and KRW 57,684,549 against the Plaintiff head-CC (hereinafter “instant disposition”).

I. The Plaintiffs were dissatisfied with the instant disposition and filed a request for examination on January 12, 201, but the Commissioner of the National Tax Service rendered a decision to dismiss the said request on June 22, 2011.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

1) Each of the real estate listed in the separate sheet No. 2 is an inherent property acquired by the plaintiffs' own income, and DuD is prepared to the effect that the above real estate is owned by the plaintiffs in order to prevent the ownership dispute between KimK and the plaintiffs immediately before the death of the plaintiffs. This is nothing more than confirming the plaintiffs' own property in light of the process of preparation thereof, etc., and even if based on the contents themselves, there is no content that each of the above real estate is bequeathed to the plaintiffs. Thus, it is unlawful for the defendant to regard each of the above real estate as a property under title trust of DuD and to dispose of this case by including the above real estate

2) At the time of the second disposition, the Defendant imposed inheritance tax by adding the real estate listed in Appendix 1 List No. 1 List No. 2(1), 1/2 to the portion of the real estate listed in Schedule No. 1(1), 1(2)0, and 2(3) on the premise that the Plaintiff would have received the ownership of the real estate listed in Schedule No. 1(1)1(1), 1(2), and 2/3 of the real estate listed in Schedule No. 1(2)1(1), 1(2), and 2/3 of the real estate listed in Schedule No. 1’s Schedule No. 2(10) and 2/3 of the share of the real estate listed in Schedule No. 1(3). In other words, this case’s disposition was unlawful since the Defendant violated Article 26(2)2(2) of the Framework Act on National Taxes or 26(2) of the res judicata effect.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

A) Facts of recognition

The following facts can be acknowledged in full view of the evidence mentioned above, Gap evidence No. 11, and the purport of the whole pleadings.

(1) Death of DoD and preparation of a notarial deed of this case

Around August 1981, when a high school teacher was in active service, he/she established a post office publishing company that publishes English teaching materials, etc. in Gwangju in around 1983 and was engaged in publishing business. At around 1987, he/she established a post office publishing company in △△△ Island in Seoul and operated it with the Plaintiffs on November 1990. On the other hand, he/she received a closed cancer diagnosis around 1990. On the other hand, he/she had a child H on September 1990.

O DuD, on April 30, 191, when hospital was hospitalized at the Youngdong University Sypian Hospital at a school of the next generation on May 1991, 191, when the first patroler aggravated on May 5, 1991, it issued a certified copy, a certified copy, a certified copy, and a certified copy of a building management ledger on the real estate owned by the plaintiff headB, who is the birth applicant, and issued the certified copy of the register, land cadastre, and a certified copy of the building management ledger on the real estate owned by himself/herself or his/her punishment, completed the draft of a will on the operation of the publishing company of each of the above real estate and the disposal of the profits therefrom, and completed it as a certified will, and issued a draft of a will to P, and requested the preparation

O 그리하여 장DD은 1991. 5. 8. 11:00경 변호사 정PP과 공정증서 작성시 증인으로 참석하기로 한 변호사 김YY 및 변호사 조QQ을 세브란스병원 0층 00호실로 불러 변호사 정PP에게 자기 소유의 부동산을 유증받을 수증자와 출판사의 운영 및 그 수익금의 처리에 관한 유언의 취지를 구술하는 한편, 변호사 김YY을 유언집행자로 지정 하였으며, 변호사 정PP은 미리 작성하여 온 유언공정증서의 내용을 항목대로 낭독해 주어 위 유언공정증서가 장DD이 한 유언과 일치하는지 여부를 확인하고, 장DD은 유언자로서, 변호사 김YY, 조QQ은 증인으로서 유언공정증서의 원본 등에 각각 자필로 서명날인함으로써 이 사건 유언공정증서를 작성하였다.

O. On the other hand, PP prepared a testamentary document (No. 772, 191) separately for only the real estate remaining in the name of DoD for the purpose of using it as tax-related data to prevent taxes such as inheritance tax and gift tax on the real estate for which the ownership transfer registration has been already made in the name of DoD and the heir among the real estate owned by DoD.

O) After that, at around 11:50 on May 14, 1991, when Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

(O) According to the notarial deed of this case, Do Governor stated that when he dies, Do Governor bequeathed real estate in his name to his children, and on the other hand, Do Governor recognizes real estate in another person's name as owned by each nominal owner, but it is recognized as owned by a person other than the nominal owner. The main contents are as follows.

First, the real estate listed in attached Form 3(1) in the name of the plaintiff head A, the real estate listed in attached Table 3(2) in the name of the plaintiff head B, the real estate listed in attached Table 3(3) in the name of the plaintiff head B, and the real estate listed in attached Table 3(3) in the name of the

However, with respect to the land registered in the name of the plaintiff headB, 2/3 shares in OO-ri, O-ri, O-ri, 00 00 m2, 1.488.793m2 (attached Form 1, 3, 1, 200-00 m2, and 3.722m2 (attached Table 1, 1, 100 m2, 1,000 m2, 3.722 m2 (attached Table 1, 100 m2, 1,000 m2, 1,2 and 1/2 shares (attached Table 1, 1, 1, 2) in the same m2 of 00-0 m2, 991 m2, 1,000-0 m2, 1,000 m2, 1,000 m2, and

Second, with respect to 00 00 m2 (1,960 m2, 10 m2, 10 m2, 10 m2, 20 m2, 10 m2, 10 m2, 10 m2, 200 m2, 10

Third, in the case of the 000-00 square meters of the 000-99 square meters of the Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-si Do-si Do-si Do-si Do-si Do-si Do-si

(2) An action for ownership transfer registration regarding the Notarial Deed of the instant will

Pursuant to Section 1, Section 1, Section 4, Section 5, Section 1, Section 1, Section 1, Section 2, Section 4, Section 4, Section 7, Section 2, Section 2, Section 4, Section 39760, Section 94, Section 1, Section 4, Section 1, Section 1, Section 4, Section 2, Section 2, Section 4, Section 4, Section 2, the above real estate was owned by the deceased, and the will of this case, which was made under the condition that he lost the ability to make a decision on the trust with the deceased head A and Section B, was null and void, the above real estate was not bequeathed to the plaintiffs, and is still in a title trust status, and the registration of transfer of ownership was filed, as a preliminary cause of infringement of legal reserve of inheritance against the plaintiffs.

(O) However, on July 3, 1997, the first point of the lawsuit was to find that the above real estate was in fact trusted to the plaintiffs as owned with DoD, but it was to dismiss the heir's claim on the ground that the testamentary document of this case was lawfully prepared. On the other hand, the judgment of the court of first instance became final and conclusive on the same ground that the judgment of the appellate court and the appellate court (Seoul High Court Decision 97Na37142 delivered on June 29, 1999) declared that the testamentary document of this case was bequeathed to children in the testamentary document of this case, and the judgment of the first instance court became final and conclusive on each of the grounds that the judgment of the appellate court became final and conclusive on each of the grounds that the judgment of first instance became final and conclusive in Seoul, Gangnam-gu 215, 593 square meters (1,960 square meters) and the 36.942 square meters of the Do-dong Do-dong Do-dong 360000 square meters.

(3) The plaintiffs' occupation and property

C. On December 18, 1974, the Plaintiff headA was a public official in correctional service, retired on July 6, 1976, and served as a police official until December 21, 200 after being issued as a policeman on September 25, 1976, and served as a police official until now. The MaU, which is its wife, was engaged in economic activities such as opening the △△△ publishing agency at the housing located in Seodaemun-gu Y0-dong Y00, and filing a comprehensive return and payment of the income tax.

As of March 1, 1975, the Plaintiff headB mainly worked in the agricultural cooperative located in Gwangju metropolitan area. Since May 30, 1983, the Plaintiff head and the Plaintiff head were able to work as a publishing company along with WW as the wife, and Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

In addition, on February 27, 1984, the plaintiff headB acquired a PP apartment 0000,000 located in the GGdong, Gwangjubuk-gu on June 16, 1988, and disposed of it on or around June 19, 1988, and on January 19, 1987, the building site and the ground building located in the Seo-gu, Gwangju, Seo-gu, 1987, but disposed of it on or around September 2, 1987.

O The plaintiff headCC served in the above publishing company operated by Dozd D from around November 1983 to 1993 after the removal from the Gun.

B) Determination

앞서 본 사실관계에 비추어 인정할 수 있는 다음과 같은 사정들, 즉 ① 이 사건 유언공정증서가 장DD의 진정한 의사에 기하여 작성되었고, 제3자에 해당하는 변호사 정PP, 김YY, 조QQ이 관여한 점. ② 장DD이 △△ 영어교재를 발간하면서 많은 재산을 모았다고 보이고, 원고들의 재산으로 이 사건 유언공정증서상의 부동산을 구입하였다고 볼만한 특별한 사정이 없는 점. ③ 이 사건 유언공정증서를 보더라도 장DD 명의의 부동산과 원고들 명의의 부동산을 구별하지 아니하고 유언의 대상으로 삼고 있는 점. ④ 이 사건 유언공정증서의 내용면에서도 대체로 장DD 명의의 부동산에 대하여는 자녀들에게 유증하고, 형제인 원고들 명의의 부동산에 대하여는 각 명의자 소유로 인정하면서도 일부 부동산에 대하여는 이를 자녀들에게 유증하거나, 명의자가 아닌 사람 소유로 인정하는 것으로 기재되어 있는 점 등에 비추어, 이 사건 유언공정증서는 원고들과 상속인들 사이의 소유권분쟁을 예방하기 위하여 작성된 것이 아니라 장DD이 자신의 재산을 원고들과 상속인들에게 배분하는 취지를 담고 있다고 보아야 하므로, 별지 제2목록 기재 각 부동산은 장DD이 원고들 앞으로 명의신탁한 재산이라고 봄이 타당하다. 따라서 원고들의 이 부분 주장은 이유 없다.

2) Determination on the second argument

A) Whether Article 26(2) of the Framework Act on National Taxes is contrary to the legal principles

Article 26-2 (2) of the Framework Act on National Taxes is established in order to prevent any unreasonable case from being able to be taken in accordance with the relevant decision or decision, in case where the procedure for litigation, such as a new decision or decision of increase, decision of increase, and decision of reduction, is delayed for a long time and where the decision or decision is made after the expiration of the period for exclusion from taxation, as a result, the taxation authority cannot take any disposition, such as a new decision or decision of increase, and a new decision or decision of increase, which is not in compliance with the relevant decision or decision, can only be made within one year from the date when the decision or decision becomes final and conclusive (see, e.g., Supreme Court Decision 2004Du1459, Feb. 25, 2005).

In light of the above legal principles, the second disposition was completely revoked on the ground that the heir's inheritance was not confirmed, such as revocation of the relevant disposition related to the lawsuit, and thus, it constitutes a case where the lawful tax amount cannot be calculated against the plaintiffs. Since the defendant calculated a reasonable tax amount based on inherited property finalized through the previous lawsuit and related lawsuit, and then reduced the tax amount against the plaintiffs than the second disposition tax amount, the disposition in this case is necessary according to the judgment of the previous lawsuit. The defendant's disposition in this case was made on October 11, 2010 before the elapse of one year from July 22, 2010, which became final and conclusive by the judgment of the previous lawsuit, and the period of exclusion prescribed in Article 26-2 (2) of the Framework Act on National Taxes expires. Accordingly, this part of the plaintiffs' assertion is without merit.

B) Whether it is contrary to the legal principles of res judicata

The res judicata effect of a final and conclusive judgment revoking a taxation disposition is limited to the grounds for illegality established in the final and conclusive judgment, and a new taxation disposition supplementing the grounds for illegality established in the final and conclusive judgment is separate from the previous taxation disposition revoked by the final and conclusive judgment, and does not conflict with the res judicata effect of the final and conclusive judgment (see, e.g., Supreme Court Decision 92Nu794, Sept. 25

In light of the above legal principles, since the title holder of the real estate in the previous lawsuit was erroneous in recognizing that it was bequeathed to the title holder of the real estate, as seen earlier, even though the title holder of the previous lawsuit did not take the legacy, the court ordered the revocation of the entire second disposition on the ground that the heir's inheritance did not become final and conclusive, such as illegal within the scope, but all relevant dispositions are revoked in the relevant lawsuit, and thus, it constitutes a case where the legitimate amount of tax cannot be calculated. This is a natural premise that the Defendant, who is the tax authority, can calculate the legitimate amount of tax and impose it again in accordance with the purport of the decision. Therefore, the Defendant’s disposition of this case is not contrary to the res judicata effect of the final and conclusive judgment in the previous lawsuit, based on the same taxation ground as the death of DoD. Accordingly, the Defendant’s supplementation of the illegal cause

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.