Seoul Administrative Court 2012Guhap10048 (29 December 2012)

Cho High Court Decision 201Do4945 ( December 26, 2011)

If there is an implied agreement to inherit, a part contrary to the agreement on division of inherited property has no effect.

(1) As the inheritance tax is not reported on the ground that there is no obligation to pay the inheritance tax, the agreement to inherit the property is agreed, and it appears that the agreement is not reported and paid on the premise that the agreement is valid, and as long as the agreement is reached, it is contrary to the agreement, it is impossible to consult on the division of inheritance property on the inherited property

2012Nu21699 Revocation of the imposition of inheritance tax

AAA et al.

The director of the tax office.

Seoul Administrative Court Decision 2012Guhap10048 decided June 29, 2012

May 14, 2013

June 14, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked.

The Defendant’s disposition of imposition of KRW 000 on October 1, 201 with respect to the Plaintiffs on October 1, 2011 is revoked.

1. Inheritance tax;

The following facts are recognized in full view of all the arguments in each entry in Gap's first, third, and evidence Nos. 4-1 to 3, and Eul's evidence Nos. 4.

[1]

"OB completed the registration of ownership transfer with respect to each real estate listed in attached Form 1 (hereinafter referred to as "the real estate in this case"), and died on September 8, 2004, and at the same time there was the plaintiffs, who are wife and women as the successors of HB.", "OCC and the plaintiffs did not report and pay inheritance tax, and did not impose inheritance tax."

[2]

OB’s death on April 27, 2010, about six years after the death of NAB, the above CC died, and at the time of j, there were the plaintiffs who were their children as the successors of NA.

"O Plaintiffs, on November 1, 2010, have prepared a written agreement on division of inherited property (hereinafter referred to as "written agreement on division of inherited property") such as written in attached Form 2 (hereinafter referred to as "written agreement on division of inherited property") with the content that they succeed to the division of this case from the B and divide it among the plaintiffs." On November 2, 2010, the O Plaintiffs reported and paid KRW 000 of inherited property, the taxable value of which is KRW 000,000 in accordance with the written agreement on division of this case.

On November 16, 2010, the Plaintiffs completed the registration of ownership transfer on the instant real estate in accordance with the instant protocol of subdivision.

[3]

O피고는 2011. 5. 9.부터 2011. 8. 12.까지 세무조사를 실시한 결과， .▲ 2004. 9. 8. 임 BB이 사망하여 지CC 및 원고들이 임BB으로부터 이 사건 부동산을 상속하면서， 지CC이 이 사건 부동산 중 법정상속분인 1/5지분을 상속하였고，.▲ 그 후 2010. 4. 27. 지CC이 사망하여 원고들이 지CC으로부터 위 1/5지분을 상속하였는데，▲ 원고 들이 임BB으로부터 이 사건 부동산을 상속하였다는 내용의 이 사건 분할협의서를 작 성하고 이에 따라 상속세를 신고 ・ 납부하였으므로，▲ 원고들의 상속세 과세가액에 위 1/5지분의 가액인 000원을 가산해야 한다고 판단하였다.

"O Accordingly, on October 1, 201, the defendant imposed an inheritance tax of KRW 000 after deducting the amount of voluntary payment tax from the total determined tax amount of KRW 000, including the penalty tax, on the part of the plaintiffs, and on the part of the plaintiffs." 2. The plaintiffs' assertion

(a) Consultation on division of inherited property;

On September 8, 2004, DoCC and the plaintiffs were deceased on September 8, 2004, who were their successors, agreed on the division of inherited property with the purport that only the plaintiffs inherited the instant real property without inheritance, and on April 27, 2010, DoCC died, and the plaintiffs completed the registration of ownership transfer on the instant real property in accordance with the above agreement on division of inherited property. Even if there was no agreement on division of inherited property as above, the plaintiffs completed the registration of ownership transfer in the future on the instant real property in accordance with the above agreement on division of inherited property. Even if there was no inheritance agreement on April 27, 2010, DoCC died, and the plaintiffs, who were their successors, succeeded to the right to division of inherited property in the status of inheritance of DoCC, and completed the registration of ownership transfer in the future of the plaintiffs on the instant real property. Accordingly, since the plaintiffs succeeded to the instant real property from GBB, it is unlawful to include the disposition of this case in the taxable value of inherited property of 1/5 shares of CC.

(b) Short-term re-Succession;

On September 8, 2004, the status of inherited property as of September 8, 2004 at the time of the death of BB did not reach KRW 1 billion and there was no obligation to pay inheritance tax. The imposition of inheritance tax on inherited property for which no obligation to pay inheritance tax was made after the death of B from among the successors of YB violates the purport of Article 30 of the Inheritance Tax and Gift Tax Act, which provides for a tax credit for short-term inheritance. Therefore, the disposition of this case, which included 1/5 shares in the statutory inheritance of NA among the instant real property in the taxable value of the

3. Determination

(a) Consultation on division of inherited property;

(1) According to the above facts, for about six (6) years from September 8, 2004, after the death of DaCC, the registration of ownership transfer was completed with respect to the real estate in this case, and there was no written agreement on the division of inherited property, and on November 1, 2010 after the death of DoCC, the following written agreement was prepared: (a) on November 16, 2010, the registration of ownership transfer was completed in the future of the Plaintiffs as to the real estate in this case; (b) on September 8, 2004, the entry of No. 5, a written statement prepared by GuCCOO, was insufficient to acknowledge that there was no agreement on the division of inherited property in this case, and that there was no other evidence that there was no agreement on the division of inherited property between CC and the Plaintiffs, the heir and the Plaintiffs, and that there was no other evidence that there was no agreement on the division of inherited property in this case.

(2) The division of inherited property by agreement between co-inheritors is a sort of contract between co-inheritors and all co-inheritors, and the division by agreement between some inheritors is null and void (see, e.g., Supreme Court Decision 93Da54736, Apr. 7, 1995). In addition, the division by agreement between inherited property is effective only with the consent of all co-inheritors, and if one co-inheritors has no pain or his/her expression of intent to represent his/her authority, the division is null and void, and the division by agreement between co-inheritors is a conflict of interest between co-inheritors (see, e.g., Supreme Court Decision 85Meu80, Mar. 10, 1987). Accordingly, if after the death of ThCC on April 27, 2010, the Plaintiffs, who were their successors, did not have a share of inheritance, and only the Plaintiffs, who inherited the inherited property, did not have a share of inheritance, and if so, it is null and void between the Plaintiffs and the parties.

(3) Thus, the disposition of this case, which included the above 1/5 shares in the taxable value of the plaintiffs, is lawful, since the DaCC inherited the above 1/5 shares of the real estate of this case, which was deceased on September 8, 2004 and succeeded to the remaining 4/5 shares, and the plaintiffs inherited the remaining 4/5 shares, but the DoCC died on April 27, 2010 and succeeded to the above 1/5 shares. This part of the plaintiffs' assertion is without merit.

(b) Short-term re-Succession;

(1) Article 30 of the Inheritance Tax and Gift Tax Act, and Article 30 of the Inheritance Tax and Gift Tax Act provides that an amount of inheritance tax shall be deducted from the calculated amount of inheritance tax if inheritance commences again due to the death of an heir within 10 years after the commencement of inheritance. Such provision takes into account the following: (a) the inheritance tax has been adopted on the basis of the liquidation of the tax burden on the first generation of the inheritee under the Inheritance Tax and Gift Tax Act; and (b) the increase of the tax burden on the deceased heir who repeated inheritance within the short period of time. However, on September 8, 2004, GCC inherited 1/5 shares of statutory inheritance among the instant real estate and succeeded to 4/5 shares, and at the time of the commencement of inheritance, CC and the Plaintiffs did not report and pay inheritance tax; and (c) on April 27, 2010, CC died and thus, it cannot be asserted that the above Plaintiffs’ shares were included in the tax base as unlawful, i.e., the inheritance tax and gift tax base of this case.

3. Conclusion

Therefore, the plaintiffs' claims seeking the cancellation of the disposition of this case should be dismissed for lack of reason, and the judgment of the court of first instance is justified with this conclusion, so the plaintiffs' appeal is dismissed, and it is so decided as per Disposition.