Where an application for annual payment of the amount of a voluntary report is filed and such application is withdrawn thereafter, the starting point of calculating the imposition of an additional tax for arrears

If a person files an application for annual installment payment with respect to the reported tax amount in accordance with Article 28 of the Inheritance Tax Act after filing a voluntary return of inheritance tax, he does not have an obligation to pay such amount within the due date for report under Article 20-2 (2) of the same Act. Even if he withdraws an application for annual installment payment thereafter, it is impossible to impose an additional tax for the period from the day following the due date for report and payment to the date of withdrawal as no retroactive effect exists in the withdrawal

Articles 20-2(2), 26(2), and 28 of the Inheritance Tax Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Plaintiff 1 and four others (Attorneys Jeong Sung-sung et al., Counsel for the plaintiff-appellant)

Head of Mapo Tax Office

Seoul High Court Decision 94Gu31381 delivered on June 22, 1995

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, if the non-party died on September 5, 1992 by the evidence of the non-party, and his wife's wife and the other plaintiffs' children inherit the deceased's properties, the plaintiffs file a voluntary report on February 26, 1993 pursuant to Article 20 of the Inheritance Tax Act, and simultaneously file an application for part of the inheritance tax amount under Article 28 of the same Act, and the remaining tax amount after deducting the application amount of annual installments was voluntarily paid on March 2 of the same year. Since it is difficult for the plaintiffs to dispose of inherited property and there is no other income to pay inheritance tax, the court below determined that the above application for annual installments payment was not made within 20 days retroactively from the date on which the plaintiffs filed an application for tax payment by annual installments, which was not made within the first half-year return deadline, and that the above application for tax payment by annual installments was not made within the first half-year return deadline, and the defendant did not receive the above application for tax payment by annual installments.

2. On the other hand, in case where a person files an application for annual installments under Article 28 of the Act with respect to the reported tax amount by filing a voluntary report of inheritance tax, he did not have an obligation to pay it by annual installments within the report deadline under Article 20-2 (2) of the Act, and even if he withdraws the application for annual installments thereafter, he cannot impose an additional tax for the period from the day following the report payment deadline to the day of withdrawal because there is no retroactive effect on such withdrawal, and it cannot impose an additional tax for additional payment for the period from the day after the report payment deadline to the day of withdrawal (see Supreme Court Decision 95Nu1705 delivered on October 12

Therefore, even if the plaintiffs withdrawn their application for payment by annual installments, the part of the court below determined that the payment by annual installments cannot be imposed for the period from the next day of the report payment deadline to the next day of the withdrawal shall be considered to be in accordance with the above purport, and there is no error of law as to the withdrawal of the application for payment by annual installments, as alleged in the first ground for appeal.

However, even if the withdrawal of the application for payment by annual installments does not have a retroactive effect as above, since it takes effect after such withdrawal, the plaintiffs cannot be exempted from the imposition of additional payment for the period from that time until December 1, 1993, which is the date of the payment notice of this case. Nevertheless, the court below's decision that the above period cannot be imposed an additional payment for the erroneous payment for the above period cannot be said to have committed an unlawful act that affected the remaining decision by misunderstanding the legal principles on the additional payment for the above period under Article 26 (2) of the Inheritance Tax Act. The second ground of appeal pointing this out is with merit.

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

Justices Lee Yong-hun (Presiding Justice)