Seoul Administrative Court-2017-Gu Partnership-8215 (2018.08)

Even if there is no actual receipt of the disposition property before the commencement date of inheritance, it cannot be said that there is a defect of invalidation in the disposition of inheritance tax.

(1) Even if there is no actual receipt of the property before the date of commencing the inheritance, etc., it is possible to clarify whether the property is subject to taxation only after accurately investigating the facts. Thus, there is a defect of invalidation in the imposition of inheritance tax.

Inheritance Tax and Gift Tax Act Article 3 (Inheritance Tax Payment Liability)

Article 15 of the Inheritance Tax and Gift Tax Act: Inheritance presumption, etc. of disposed property before the commencement date of inheritance

2018Nu52596 Invalidity of the disposition of imposition of inheritance tax

○ Kim

○ Head of tax office

Seoul Administrative Court Decision 2017Guhap82215 decided June 8, 2018

December 6, 2018

December 27, 2018

1. Of the judgment of the court of first instance, the part against the plaintiff that rejected the lawsuit below shall be revoked.

Of the instant lawsuit, the part of the claim for revocation regarding the portion exceeding 34,----, and -- won (including additional tax) of the disposition imposing inheritance tax imposed on the Plaintiff on December 14, 2016 by the Defendant among the instant lawsuit is dismissed.

2. The plaintiff's remaining appeal is dismissed.

3. 50% of the total costs of the lawsuit shall be borne by the Plaintiff, and 50% shall be borne by the Defendant.

The judgment of the first instance is revoked. On December 14, 2016, the defendant confirms that the imposition and notification of inheritance tax against the plaintiff on December 14, 2016 is invalid.

1. Details of the disposition;

A. The Plaintiff’s husband’s husband’s deceased on July 3, 2014 (hereinafter “the deceased”). The deceased’s heir, the deceased’s husband’s father, is the deceased KimCC (Death on November 19, 2015), 0D, 0E, and net0A, and the Plaintiff’s deceased’s children, who are the substitute heir of the deceased, are the deceased’s spouse’s deceased KimCC (Death on November 19, 2015), 00,000,0000.

B. The Defendant conducted an inheritance tax investigation following the deceased’s death from July 6, 2016 to October 29, 2016, as the deceased’s heir did not report inheritance, and included the amount calculated by subtracting the total amount deposited from the total amount deposited in the deceased’s deposit account within two years before the deceased’s death; Article 15 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”); Article 11(4) of the Enforcement Decree of the same Act, which excludes KRW 200 million from the above amount pursuant to Article 15 of the Inheritance Tax and Gift Tax Act; and Article 9-----------------------------------------------------------------------------------------------------------------------------------------------------------..

C. Thereafter, on January 20, 2017, the Plaintiff filed a report to waive the inheritance of the deceased and the deceased KimCC’s property (Seoul Family Court Decision 0000 Madan0000, and received the acceptance decision on May 28, 2017.

D. On November 30, 2018, the Defendant revoked ex officio the 39,----, and --- Won, the part of the above inheritance tax already imposed and notified to the Plaintiff on November 30, 2018, which succeeded to the inheritance tax liability of the deceased KimCC, and notified the Plaintiff of the correction and notification of the above inheritance tax to the Plaintiff as 34,---,--,--won (the maximum amount of joint and several liability for payment 9,---,--won) (hereinafter referred to as “the remainder of the instant disposition”).

(In fact that there is no dispute, Gap's Nos. 1-6, Eul's No. 1, 2, and 7 (including each number), and the purport of the whole pleadings.

2. Whether the lawsuit on the part of the instant disposition revoked ex officio is legitimate

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2012Du18202, Dec. 13, 2012).

ex officio, the fact that the defendant revoked ex officio the part exceeding 34,-----, and --- Won of the disposition of this case to the plaintiff. As seen earlier, the above part of the lawsuit of this case, which loses its validity, does not exist any longer. The part seeking revocation of the above part of the lawsuit of this case, which is seeking revocation of the disposition of this case, is a claim for revocation of the disposition of this case which

3. Whether the remaining dispositions of this case are legitimate

The reasoning for this part of this Court is as follows, and it is identical to the entry of "the lawfulness of the instant disposition" in the reasoning of the judgment of the court of first instance, except as follows. Thus, this part of this Court shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ The part of the “instant disposition” of the 3th 4,5 lines is regarded as “the remainder of the instant disposition.”

At the fourth bottom of ○, “The portion imposed on the Plaintiff, the heir of the deceased, pursuant to Article 15 of the Inheritance Tax and Gift Tax Act, among the instant disposition” is “the remaining disposition.”

○ Parts from 4 th to 5 rd shall be deleted.

4. Conclusion

Since the lawsuit concerning the claim for revocation of authority among the dispositions of this case is unlawful, it shall be dismissed. The remainder of the plaintiff's claim shall be dismissed as it is without merit.

In the judgment of the court of first instance, the above-mentioned dismissal is unfair with different conclusions, and thus, the above-mentioned revocation part shall be dismissed.

The remainder of the judgment of the court of first instance is just in conclusion, and the remaining appeal by the plaintiff is dismissed as it is without merit.