early 208 Jeon 2402 (Occ. 30, 2009)

Whether it is possible to permit payment by annual installments only to some inheritors

In a case where payment by annual installments is permitted only to some inheritors, and it is not permitted to pay by annual installments, since there is a conflict in exercising the right to collect tax under the provisions related to joint and several tax liability, it cannot be viewed as a mistake on the ground that payment by annual installments was not permitted only to the inheritors.

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

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

On December 26, 2008, the defendant revoked an application for permission by annual installments, which was made against the plaintiff on December 26, 2008.

1. Circumstances of the disposition;

A. As the Plaintiff’s father KimA died on August 27, 2006, the Plaintiff’s spouse’s newB, and the Plaintiff, KimCC, KimDD, KimE, and KimF (hereinafter “he inheritors”) jointly inherited the deceased’s property.

B. ○○○ Director of the Regional Tax Office may conduct an inheritance tax investigation on the deceased’s inherited property on April 1, 2008.

On August 27, 2006, the Plaintiff and other inheritors imposed KRW 36,166,262,650 as inheritance tax on the inherited portion of August 27, 2006. Since then, the Tax Tribunal made a decision of citing part of the heir's appeal, the Defendant corrected the tax amount by reducing it to KRW 32,230,656,760 on April 16, 2009.

C. On April 28, 2008, the inheritors filed an application for the annual payment of inheritance tax with respect to KRW 27,124,696,650 of the above inheritance tax with respect to the Defendant, but the written application for the provision of security for tax payment attached to the above written application did not provide security after stating that the written application for the provision of security for

D. The Defendant urged the inheritors to provide security for tax payment necessary for permission for annual installments, on five occasions, including April 30, 2008, May 8, 2008, July 24, 2008, September 19, 2008, and October 21, 2008, but failed to provide security for tax payment as the inheritors could not resolve their differences in property division among themselves.

E. On the other hand, on July 24, 2007, the Plaintiff filed a petition for a trial on the division of inherited property against the heir’s right by ○○ District Court Family Branching 2007Rahap12, and rendered a judgment on October 23, 2009. However, as a complaint or reappeal was filed between the parties, the trial is still in progress as Supreme Court Decision 2010S76 at present.

E. On December 26, 2008, the Defendant rejected an application for permission to pay annual installments on the ground that the inheritors did not provide the security for tax payment (hereinafter “instant disposition”).

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) In order for inheritors to provide security, a decision of adjudication on division of inherited property has become final and conclusive and the registration of ownership transfer has to be made in their names. However, the above procedure of division of inherited property could not be delayed and the defendant could not provide security. Meanwhile, the disposition of this case refusing payment by annual installments of inheritance tax was unlawful even though the defendant secured security on inheritance by seizing the inherited property

(2) Although the remaining inheritors, except KimCC, intend to implement the annual payment procedure by such means as paying part of inheritance tax, the Defendant refused that the entire inheritors should implement the annual payment procedure. Although there is no statutory provision that the annual payment procedure for part of the inheritors is not possible, it is unlawful to refuse an application for annual payment for the foregoing reasons.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the delay in division of inherited property becomes a cause for repayment and postponement of the obligation to provide security for tax payment

The annual payment system of inheritance tax and gift tax has a large amount of tax in cases of such taxes, and acquisition property is also necessary for realization of real estate, etc. In such cases, if the principle for lump-sum payment is advanced on the basis of the convenience of collection only, it will impose an excessive burden on the taxpayer. Accordingly, it would result in compelling the taxpayer to dispose of the property inherited or certified within the short payment period, and thus, it would endanger the basic life of the taxpayer. Therefore, the purpose of this system is to provide the taxpayer with the benefits of installment payment and delay of payment to the extent that it does not harm the national tax revenue. Accordingly, the above system is not directly related to the existence or absence of the taxpayer's ability.

In addition, under the principle of no taxation without law, the establishment and scope of tax liability, the fixed number procedure, etc. should be provided by law, and the interpretation and application of tax law can not be permitted in the interpretation and application of the tax law, and the property rights of taxpayers should not be unduly infringed in light of the equity of taxation and the purpose of the pertinent provision. The annual payment system of inheritance tax or gift tax guarantees taxpayers the right and interest of delay of payment in installments and due date under the law as an exception to the principle of lump-sum payment in the national tax collection procedure, and the requirements for permission are clearly provided, and there is no room for the tax authorities to intervene in the determination of the existence of the requirements, and there is no reason for the taxpayer to make it difficult for the taxpayer to pay in lump sum, the defendant shall be bound to meet the requirements for permission for annual payment as stipulated by the law. However, with respect to the period of annual payment, the defendant may make a decision by considering the taxpayer's situation and the purpose of the annual payment system within the statutory period (see Supreme Court Decision 91Nu374, Apr. 10, 192).

As seen above, the purpose of the annual payment system is to provide the taxpayer with the benefit of installment payment and the delay of the deadline, and there is no direct relationship with the taxpayer's actual taxpayer's ability to pay taxes, and the defendant also is bound to the requirements for permission other than the period of annual payment. Thus, it cannot be deemed that the defendant has a duty to continue to postpone the provision of the security for tax payment for the reason of internal circumstances among the inheritors who did not hold an agreement on the division of inherited property among the inheritors. It is deemed that the seizure of property as a procedure for disposition for arrears and the provision of the security for the request for annual payment cannot be permitted for annual payment by exempting the obligation to provide the security for tax payment on the ground that the property was seized as different separate procedures. Thus, it is legitimate that the defendant did not grant permission for annual payment on the ground that the heir did not provide the necessary security for tax payment for annual payment pursuant to Article 71 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 3

(2) Whether payment by annual installments can be permitted only to some successors

According to the statement Nos. 1-2 and 1-2 of the evidence No. 1-2, in this case, it is clear that the inheritor filed an application for permission for annual payment of inheritance tax to the Defendant, and that it is not an application for permission for annual payment of inheritance tax only to some inheritors, as alleged by the Plaintiff. Thus, this part of the Plaintiff’s assertion on this premise is without merit. In addition, as seen earlier, the Defendant’s ground for the disposition of this case was based on the reason that the inheritor did not provide the necessary security for payment of annual payment of inheritance tax, and it is not impossible to grant permission for annual payment of part of the inheritor.

Furthermore, according to Article 3(1) and (4) of the former Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008), each co-inheritors is obligated to pay the inheritance tax according to the ratio of possession of the property he/she received or is to receive among the total amount of the inheritance calculated by calculating the total value of the inherited property of the inheritee as the taxable value of the inherited property of each co-inheritors, as well as to jointly and severally pay the inheritance tax of other co-inheritors

Article 25-2 of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010) provides that the provisions of Articles 413 through 416, 419, 421, 423 and 425 through 427 of the Civil Act shall apply mutatis mutandis to joint and several tax liability, and the tax payer may seek payment from one or all of the joint and several tax obligors, and the claim against one of the joint and several tax obligors shall have absolute effect on the other joint and several obligors. Examining these legal principles in light of the Plaintiff’s assertion, if payment by annual installments is permitted only to some of the successors, and payment by annual installments is not permitted, the tax claimant shall exercise the right to collect taxes under the provisions on joint and several tax liability as set forth above. Thus, the conflict and disability may arise between the inheritor who has permitted payment by annual installments and the Defendant shall not be deemed to be erroneous on the ground that the Defendant did not allow payment by annual installments only to some of the successors.

3.In conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition by the court below.