early 208 Jeon 2402 (Occ. 30, 2009)

Whether the spouse's inherited property constitutes an inevitable cause for not dividing it;

The circumstance that a criminal trial was pending or an adjudication on division of inherited property was pending between inheritors does not constitute an inevitable cause for not dividing the spouse's inherited property.

The contents of the decision shall be the same as attached.

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s disposition of imposition of KRW 34,645,405,120 on April 1, 2008 against the Plaintiffs was revoked (the Plaintiff sought revocation of the disposition of imposition of inheritance tax on April 7, 2008 from the purport of the claim, but this seems to be a clerical error in the statement of April 1, 2008).

1. Details of the disposition;

A. Plaintiff NewD is the deceased Kim E (hereinafter referred to as “the deceased”)’s spouse, and the rest of Plaintiffs are the deceased’s children (hereinafter referred to as “the deceased’s heirs, including KimB, KimF, who are children of the Plaintiffs and the deceased, together with the deceased’s inheritors, hereinafter referred to as “the heir of this case”).

B. As the deceased died on August 27, 2006, on February 26, 2007, KimB, KimF reported the inheritance tax return (hereinafter “instant inheritance tax return”) with the taxable value of 52,195,00,000,000, and the voluntary payment tax amount of 21,177,000,000 won.

C. From September 27, 2007 to December 31, 2007, the director of theCC Regional Tax Office conducted an inheritance tax investigation on the deceased’s inherited property and notified the Defendant of the result. On April 1, 2008, the Defendant issued an inheritance tax disposition (hereinafter “instant disposition”) that determined the taxable value of inherited property as KRW 71,486,648,148, and the tax base as KRW 69,70,173,60, and calculated as the tax base as KRW 36,166,262,650, as calculated jointly and severally by the Plaintiffs.

D. On July 1, 2008, the Plaintiffs were dissatisfied with the above disposition of inheritance tax and filed an appeal with the Tax Tribunal. On March 30, 2009, the Tax Tribunal rendered a decision to deduct KRW 6,038,500,000 from the provisional payment ofCC, Seobu-Stop Bus Joint Terminal Co., Ltd. (hereinafter “CC Terminal”), a representative of the Deceased on March 30, 2009, as inheritance liability, and made a decision to rectify the inheritance tax base and tax amount.

E. Accordingly, on April 16, 2009, the Defendant: (a) deducted the taxable value of inherited property from KRW 64,808,148,148,148; and (b) determined that the tax base should be KRW 63,808,148,148; and (c) accordingly, reduced the inheritance tax amount to KRW 32,230,656,760.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 and 2 (including each number, if any) and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) The Deceased owned 576,00 shares ofCC Broadcasting Co., Ltd. (hereinafter “CC Broadcasting”), but the Defendant, on October 12, 2006, transferred 6,000 shares to 10,000 won per share to CC Broadcasting Co., Ltd. (hereinafter “GG Comprehensive Construction”). Based on the fact that the Plaintiff transferred 6,00 shares to 10,000 won per share of the shares in the above transaction, the inheritance tax was calculated on the basis of the market price of the above transaction. However, in relation to the transfer of CC Broadcasting shares, HH Co., Ltd. (hereinafter “HH”)’s transfer of 60,00 shares to YJ on May 16, 206, the Defendant calculated the market price of SH’s shares by taking account of the market price’s transfer of 10,000 shares per share to 10,000 won per share, if it is objectively deemed that the market price is objectively unfair.

2) The Deceased took out a loan of KRW 1,840,00,00 from K and bears the obligation. In light of the fact that the above loan was appropriated for the short-term loan of theCC Bus Co., Ltd. (hereinafter “CC bus”), and that subsequentCC bus continued to bear interest on the above loan, it was necessary forCC bus to obtain a loan of its operating fund, but it was impossible to obtain a loan from the bank due to the continued loss, on the premise that it was not possible to obtain a loan from the bank due to the continued loss, it was deemed that the debtor of the above loan was the representative director ofCC bus at the time, and did not deduct the above loan from the taxable value of the inheritance tax. However, the above loan agreement entered into with CC bus cannot be deemed as a false agreement or invalid as an expression of intention. Accordingly, the obligor of the above loan debt must be deducted from the taxable value of the inheritance tax.

3) Although Plaintiff DoD applied for the deduction of the actual amount of inherited property from the taxable value of inherited property as the spouse of the deceased, the Defendant: (1) the reason why the heir was unable to divide his/her inherited property by the due date of inheritance shall not be deemed to fall under an unavoidable reason under Article 19(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9924, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”); and (2) even if it is inevitable for the Plaintiff’s family affairs to fall under an inevitable reason, the Plaintiff could not be deemed to have filed a report on the non-division of inherited property pursuant to the statutory form. However, even if the Plaintiff DoD failed to divide the inherited property by the due date of inheritance, the Plaintiff could not be deemed to have been aware of the reason that the heir did not file the report on the non-division of inherited property by the due date of inheritance, and the Plaintiff could not be deemed to have received the remaining reasons for inheritance by the due date of death and inheritance.

(b) Related statutes;

The entries in the attached Table shall be as follows.

(c) Fact of recognition;

1) On August 27, 2006, the Deceased was a valuable asset inCC, and on which August 27, 2006, the Deceased was killed to an employee ofCC terminal operated by the Deceased. On February 12, 2007, the Seoul District Court sentenced the Deceased to imprisonment for life to an employee ofCC terminal who killed the Deceased. The above employees filed an appeal and a final appeal, but both appeals and final appeals were dismissed, and the judgment became final and conclusive on July 30, 2007.

2) On July 24, 2007, KimB among the instant successors, filed a trial on the division of inherited property on July 24, 2007 with the Seoul District Court’s Family Branch Decision 2007Rahap12, and rendered a judgment on October 23, 2009. However, the instant case was pending in the Seoul High Court after KimB’s appeal (No. 2009B7).

3) The transaction cases of the shares ofCC Broadcasting, which were conducted during the period of 6 months before and after the commencement date of the inheritance on August 27, 2006, are as follows (hereinafter referred to as "the transaction falling under the sequence 1 among the following transaction cases," and "the transaction falling under the sequence 2" is referred to as "the second transaction in this case").

4) On November 11, 2005, the Deceased borrowed KRW 1,840,00,000 from K to November 11, 2008 at the interest rate of KRW 5.95% per annum (the rate of actual deposit linked) and the due date of repayment until November 11, 2008.CC bus appropriated the above loans borrowed by the Deceased as a general loan to the president of each short-term loan account in 2005, and paid the interest in 2005 and 2006 for the above loans to K.

5) From September 2007 to December 2007, HongA, who was in charge of the duties regarding the deceased’s inheritance tax, was aware that the instant heir did not reach an agreement on the division of inherited property since before investigating the inheritance tax of the deceased’s, as a staff of the regional tax office, the RedA knew that the instant heir was filed a judgment on division of inherited property.

6) Plaintiff KimL filed an application with the regional tax office around August 2007 that “GGB” filed a return of inheritance tax with other inheritors, and thus, the employees in charge of theCC regional tax office rejected such application.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 6, 7, 9, 15, 16, 18, Eul evidence Nos. 3, 4, 7, 9, 16 through 19 (including each number, if any), witness RedA testimony, plaintiff KimL's party personal examination result, the purport of the whole pleadings

D. Determination

1) Determination as to the assertion that the market price assessment ofCC Broadcasting Stocks is unlawful

Pursuant to Article 60(2) of the former Inheritance Tax and Gift Tax Act and Article 49(1)1 and (2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, the value of the property subject to inheritance shall be appraised as the market value as of the date of commencing the inheritance, which is the base date of appraisal. In cases where there are two or more trades of the relevant property during a period not exceeding six months before or after the base date of appraisal, such trade value shall be deemed the market value, and in cases where there are two or more values deemed the market value within six months before or after

As seen earlier, the transaction ofCC Broadcasting stocks was conducted on two occasions within six months before and after the evaluation base date, based on the date of appraisal base date, and the transaction was conducted on three months from the evaluation base date and ten days before and after the date of the transaction. On the other hand, the transaction was conducted on the date nearest one month from the evaluation base date, and the transaction was conducted on the date before and after the evaluation base date is deemed to be the second transaction in this case. Accordingly, as of the evaluation base date ofCC Broadcasting stocks, which are the inherited property of this case, the market price per share as of the second transaction in this case, is 10,000 won, which is the trading value ofCC Broadcasting stocks of this case.

The plaintiffs asserted that the transaction value in the first transaction of this case is excluded from the market value which is the basis for market price calculation (Article 49 (1) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act), and that the number of transaction number in the second transaction of this case is merely 1/10 of the number of transaction number transacted in the first transaction of this case, and there are no factors for price fluctuation, such as rapid improvement in the management performance ofCC Broadcasting after the first transaction of this case, and that the market value ofCC Broadcasting stocks calculated by supplementary evaluation methods based on the net asset value and net profit value ofCC Broadcasting is 5,058. In light of the above facts, since the transaction value in the first transaction of this case should be recognized as the market value ofCC Broadcasting of this case, the transaction value in the second transaction of this case should be recognized as the market value of the first transaction of this case. However, since the plaintiff's assertion that the transaction value in this case is objectively unjust, such as the transaction with a related party of this case's second transaction of this case, the plaintiff's assertion is without merit.

Therefore, it is legitimate to calculate the market value of the CCC’s stocks with the market value of 10,000 won per share of the CCC’s stocks owned by the deceased, and determine the taxable value of inherited property on the premise of this.

2) The determination as to the allegation that the deceased’s failure to deduct his/her obligation of loans of KRW 1,840,000 against K from the taxable value of inherited property is unlawful

As shown in the above facts, the deceased borrowed KRW 1,840,00,00 from K on November 11, 2005 under his own name, and even if, as alleged by the plaintiffs, the deceased is a debtor of the above loan obligation based on the name of the above loan contract, under the name of the above loan contract,CC bus appropriated the above loan as a general loan to the president of the account for short-term loan in 2005 business year, and paid the above loan interest in 2005 and 2006 to K. In light of the fact that the deceased borrowed the above loan from K to K, and then it seems that the deceased again lent the above loan toCC bus again, the deceased has a claim for the above loan amount of KRW 1,840,00,00,000, and therefore, in the taxable amount of the deceased's inheritance tax, there is no change in the amount of the deceased's loan obligation to K 1,840,000,000 in the taxable amount of the deceased's loan.

Therefore, it is justified in its conclusion that the Defendant’s failure to deduct the Defendant’s obligation of loans of KRW 1,840,000 to KK of the Deceased is justifiable.

3) Whether the Defendant’s failure to deduct the value of the Plaintiff’s actual inherited property from the taxable amount of inheritance taxes is unlawful

A) The contents of the spouse’s inheritance deduction under the former Inheritance Tax and Gift Tax Act and the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and the procedure for receiving the spouse’s inheritance deduction are as follows

(1) Where the spouse's inherited property is divided by the deadline for division of inherited property.

In cases where the spouse of the deceased divides the inherited property of the deceased by the time limit for division of the inheritance tax and property (within six months from the date following the end of the month in which the date of commencement of inheritance falls), the value of such inherited property shall be deducted from the taxable value of the inherited property (Article 19(1) of the former Inheritance Tax and Gift Tax Act).

In order to obtain a spouse's inheritance deduction, the inheritor shall report the division of the inherited property to the head of the tax office having jurisdiction over the place of tax payment by the end of the division of the spouse's inherited property (Article 19(1) and

(2) Where it is impossible for the spouse to divide his/her inherited property by the due date for inevitable reasons.

Where an inherited property is filed by dividing it within six months from the day following the due date of the split-off of the spouse's inherited property due to unavoidable reasons, spring for the split-off of the spouse's inherited property (Article 19(3) of the former Inheritance Tax

The inevitable reason should fall under the reasons prescribed by the Presidential Decree, such as "a case where an inheritor, etc. files a lawsuit claiming recovery of inheritance against the inherited property" or "a case where the head of competent tax office recognizes the fact that the spouse is unable to divide the inherited property due to unavoidable reasons for which the inheritor is not finally confirmed" (Article 19 (3) of the former Inheritance Tax and Gift Tax Act and Article 17 (2) 1 and 2

In such a case, the heir shall report to the head of the tax office having jurisdiction over the place of tax payment, along with the documents proving the inevitable reasons (Article 19(3) of the former Inheritance Tax and Gift Tax Act, Article 17(3) of the Enforcement Decree of the Inheritance Tax

B) In the instant case, since the commencement date of inheritance was as seen earlier on August 27, 2006, inheritance tax and one association member's association member's association member's association member's association member's association and one's association member's association member's association member's association and one's association member's association member's association member's association member's association and one's association member's association member's association member's association member's association and one's association member's association member's association member's association.

③ On August 31, 2007, Plaintiff NewD received inherited property by division and reported the fact of division to the Defendant, who is the head of the competent tax office.

④ If it is impossible to divide Plaintiff NewD’s inherited property until August 31, 2007 due to extenuating circumstances, such as “where an inheritor, etc. has filed a lawsuit for recovery of inheritance against inherited property” or “where the head of competent tax office recognizes the fact that the spouse could not divide the inherited property due to inevitable reasons for which the inheritor has not become final and conclusive, etc., the heir of this case shall file a report with the Defendant, who is the head of competent tax office, along with documents proving the inevitable reasons by February 28, 2007, which is the deadline for filing

C) However, in the instant case, the Plaintiffs are the Plaintiffs who received the division of inherited property by August 31, 2007 and filed a report on the divided fact with the Defendant. However, the interpretation of tax laws and regulations by preventing the requirements for taxation or the requirements for tax exemption or reduction of taxes under the principle of no taxation without the law without the law, barring any special circumstance. It is not allowed to expand or analogically interpret without any reasonable reason (see, e.g., Supreme Court Decision 2002Du9537, Jan. 24, 2003). The circumstances revealed in the instant recognition, namely,, the deceased was killed on August 27, 2006 and the relevant criminal trial was proceeded until July 2007, or the agreement on the division of inherited property between the inheritors of the instant case was not supported, and it is difficult to view that the heir of the instant case continues to file a lawsuit on the division of inherited property between the heirs of the instant case and the heir of the instant case as an inevitable cause under Article 17(2)2) of the Enforcement Decree of the Inheritance Act.

Even if the above circumstances are deemed to fall under the inevitable reasons stipulated in each subparagraph of Article 17(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, in this case where there is no evidence to determine that the plaintiffs filed a report with the defendant, together with the documents proving the inevitable reason not to divide their inherited property, by February 28, 2007, by the defendant, there is no evidence to determine that the plaintiffs had filed the report with the defendant by attaching the documents proving the inevitable reason not to divide their inherited property. The plaintiffs knew that the inheritance was pending in the judgment on division of inherited property between the inheritors around September 2007, or the plaintiffs filed a request with the Seoul Regional Tax Office around August 2007, that "GinB reported inheritance tax to other inheritors." However, the employees of the Seoul Regional Tax Office did not regard that the plaintiffs refused such a request as having filed a report with respect to the reasons not to divide their inherited property to the defendant.

4) Sub-committee

Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.