Cho High Court Decision 201Do2118 ( October 08, 2011)

Methods of certification for non-taxation of inheritance tax as a seed, forest or tombtos;

In order to be exempt from inheritance tax as a gold, forest or grave land, the fact that the land is used as a gold, forest or grave land and the fact that the land becomes owned by the heir who is the presiding official of the company must be proved.

Subparagraph 3 of Article 12 of the Inheritance Tax and Gift Tax Act

2013Guhap8974 Revocation of Disposition of Revocation of Inheritance Tax Imposition

IsaA

K Director of the Korean Tax Office

July 26, 2013

September 6, 2013

1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The disposition of imposition by the Defendant against the Plaintiff (Appointed Party) on December 1, 2010 and the designated parties listed in the separate sheet No. 1 shall be revoked.

1. Details of the disposition;

A. On September 13, 1997, the networkB died with the Plaintiff (designated parties, and hereinafter referred to as the “Plaintiffs”) and the designated parties, E, E, E, E, E and HaG, and H (hereinafter referred to as the “heirs”), which are the wife and its children.

B. On Aug. 5, 199, the director of the North Daegu District Tax Office imposed OOOOO on the European Union, etc. on August 5, 1999, and imposed OOOO0 of inheritance tax finally on February 16, 2004 following the revision of reduction several times (hereinafter referred to as "pre-paid inheritance tax disposition").

다. 권CC(이하 '망언'이라 한다)은 2009. 4. 30. 원고와 상속인들을 두고 사망하였는데， 그에 앞서 임야 1필지(OO시 O구 OO동 산 7 임야 30，545㎡ 이하 '이 사건 임야' 라 한다)와 전답 4필지(같은 동 18 전 1，236㎡' 같은 동 20 답 476㎡， 같은 동 21 답 1，547㎡' 같은 동 22 답 1，018㎡' 이하 통틀어 이 사건 전답'이라 하고 이 사건 임야와 통틀어 '이 사건 부동산'이라 한다)에 대한 자신의 공유지분(각 15분의 3)을 손자인 선정자 이II에게 유증하였다.

D. On December 7, 2010, the Defendant imposed an inheritance taxOO on the Plaintiff, etc. on the Plaintiff, etc. on December 7, 2010, and finally imposed an inheritance taxOOO on February 7, 2013 following several revisions for reduction (hereinafter “instant disposition”).

[Based on Recognition] The whole purport of the arguments, and the non-speed private elements, Gap evidence 1, Eul evidence 1, 2, 3, Gap evidence 2, 4, and 6, Eul evidence 1 to 5, Eul evidence 2, 3, and 4, and evidence 4.

2. The plaintiff's assertion

The instant disposition shall be revoked as it is unlawful as seen below.

A. The real estate in this case is a gold, forest or tombto provided for in Article 1008-3 of the Civil Code and succeeded to this II by the representative, who is the presiding official of the company. Thus, it must be excluded from inheritance tax under Article 12 subparagraph 3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916 of January 1, 201, and the Enforcement Decree thereof, hereinafter referred to as the "Enforcement Decree") and Article 8 (3) of the Enforcement Decree of the Enforcement Decree.

B. The deceased's transfer of 204, 3.9, AppointOs, 2007, and OOOs transferred to HahJ on December 21, 199 to the plaintiff's her sonJ, OOs transferred to the designated person's son on the same day, and OOs in total (hereinafter referred to as "OOs") only distributed national tax refund, etc. according to the disposal of the preceding inheritance, according to the shares of each person, and it is not a donation by the deceased, it should be deducted from the value of the inherited property.

C. At the time of the instant disposition, the Defendant did not apply a lump sum deduction under Article 21 of the Act (500 million won).

D. The document (No. 1-5) presented by the Defendant based on the instant disposition (No. 1-5) is without the signature or seal of the approving authority, and the content and basis of the taxation disposition (the basis of calculation of the tax base and the content of the investigation) are not sufficiently shown, and thus, it cannot be deemed a valid official document.

3. Relevant statutes;

Attached Table 2 "Related Acts and subordinate statutes" shall be as stated in the attached Table 2.

4. Determination

A. Whether the instant real estate is exempt from inheritance tax

(1) The purport of Article 1008-3 of the Civil Act is that the spawal forest is the place where the spawals are located and the spawal forest is the place where the spawals are not cut without permission, and that the spawal forest and spawal are attached to a specific grave, where the spawals or spawals are the resources for the spawals or management of the grave, and Article 12 subparagraph 3 of the Act and Article 8 (3) of the Enforcement Decree provides that the spawal forest and spawal shall be exempted from inheritance tax if the spawal forest and spawals are succeeded to the property for the purpose of the spawaling of the spawal will belong to the heir where the spawal forest, etc

(2) In light of the language and content of Article 12 subparag. 3 of the Act and Article 8(3) of the Enforcement Decree, and the purport of the above provision, in order for certain land to be exempt from inheritance tax as a gold, forest or grave land, the fact that it is used as a gold, forest or grave and the fact that it is owned by the heir who is the presiding official of the company should all be proved, and the plaintiff's assertion is without merit.

(b) Whether the withdrawn amount should be deducted from the value of the inherited property;

(1) Progress of the disposition of inheritance tax and details of the refund of national tax

(A) After the initial disposition of income tax, the tax authority deposited the OOO of the national tax refund as a result of the rectification of reduction into the account under the deceased’s name on February 27, 2004.

(B) Although the deceased and the plaintiff filed an application for payment of inheritance tax in kind with respect to the initial disposition of income tax, the additional dues may not be added unless the director of the tax office of the North Daegu District Tax Office notifies the Republic of Korea as to whether to permit the payment of inheritance tax. On July 6, 2006, the plaintiff filed a lawsuit against the Republic of Korea for seeking State compensation and received a judgment in favor of the court (2004Na9054), and the above judgment became final and conclusive by the Supreme Court on October 25, 2007 (2006Da51072).

(C) According to the above final judgment, the details of damages paid by the Republic of Korea to the deceased, etc. are as follows (the whole, and deposit was made into the account in the name of the deceased).

Inheritance Shares

Damages

November 9, 2007

Damages for Delay

December 20, 2007

Deceased (CCC)

3/15

OOOE

OOOE

2/15

OOOE

OOOE

Appointed DD

2/15

OOOE

OOOE

EE for the Selection

2/15

OOOE

OOOE

Appointor FF

2/15

OOOE

OOOE

GGG of the Appointed

2/15

OOOE

OOOE

H HH

2/15

OOOE

OOOE

Total

15/15

OOOE

OOOE

(D) The details of deposits and withdrawals from the deceased’s account in relation to the national tax refund and damages are as follows.

Date of transaction

Amount of reserve

Amount of withdrawal

Receiving Person

February 27, 2004

OOOE

March 9, 2004

OOOE

H HH

December 20, 2007

OOOE

December 21, 2007

OOOE

Appointor FF

December 21, 2007

OOOE

Marrier JJJ

[Reasons for Recognition] The non-contentious facts, Gap evidence 2-2, Gap evidence 4-1 and 2, and the purport of the whole pleadings

(2) Determination

According to the above facts, the plaintiff and the heir are entitled to receive them according to their respective shares in the national tax refund or damages on the initial disposal of inheritance tax, and to that extent, they are not property donated by the deceased. In full view of the whole purport of the arguments in the statement No. 2, No. 2, No. 1, No. 4, and No. 5, prior to the disposition of this case, the defendant, prior to the disposition of this case, deemed to constitute prior donation of OO00 won, which corresponds to 3/15 of the deceased's inheritance shares among OO000 won, and the remaining O00 won was deducted from the taxable value of inheritance (the decision of correction was maintained in the disposition of this case as of January 7, 2013, and this was maintained in the disposition of this case). Accordingly, the plaintiff's argument on this point is without merit (the plaintiff's argument is that the entire amount of the withdrawn money should be deducted from the inherited property value, and that the amount of the national tax refund deposited to the account under the deceased's name does not coincide with the heir's shares.

C. Whether the instant disposition violates Article 21 that provides for a blanket deduction

Article 21 of the Act provides that at least five hundred million won may be deducted in the case of inheritance, but Article 24 of the Act provides that the limit of the amount to be deducted pursuant to Article 21 of the Act shall be limited to ① the value of bequeathed property, ② the value of the property inherited by the heir in the following order due to the renunciation of inheritance, and ③ the value of the property added to the taxable value of inherited property pursuant to Article 13 of the Act. However, in full view of the entries in subparagraph 1-5 of the evidence No. 1-5, the defendant can recognize the fact that the deduction limit pursuant to Article 24 of the Act is calculated as an OOO, and the fact that the deduction is deducted from the taxable value of inherited property is calculated as at the time of the disposition in this case, and therefore, the whole amount of the inherited property of the deceased cannot be deducted from the taxable value of inherited property, notwithstanding the provisions of

D. Whether the document that served as the basis for the instant disposition is null and void

In relation to the disposition of this case, the plaintiff asserted that the approval of the approving authority was omitted in each inheritance tax decision resolution (No. 1 to 5). However, it is deemed that the defendant printed out the documents necessary for the lawsuit on the computer network and shipped them out on the computer network, and each resolution does not have any authority to do so illegally, and it can be confirmed that the grounds that the defendant caused the disposition of this case, such as the value of the inherited property, the amount of the donated property, the amount of the credit obligation, and the amount of personal deductions, are detailed in detail. Thus, the plaintiff's assertion on this is without merit

5. Conclusion

The plaintiff's claim is dismissed, and the costs of lawsuit shall be borne by the losing party.