Suwon District Court-2012-Gu Partnership-1653 ( February 22, 2012)

The imposition of unjust underreported penalty tax is illegal.

In the absence of the plaintiffs to report their claims, it cannot be deemed that the failure of the plaintiffs to report their claims on the basis of the wrong judgment on the possibility of recovery is an "unfair method" without any deceptive scheme or any other unlawful act that makes it impossible or considerably difficult to discover the claims.

Seoul High Court-2013-Nu-26974 ( October 19, 2014)

1. Park A;

2. B B.

3. ThisCC;

D Head of the tax office

Suwon District Court-2012-Gu Partnership-1653 ( October 22, 2013)

on October 26, 2014

on October 19, 2014

1.The judgment of the first instance shall be modified as follows:

A. Of imposing inheritance tax of KRW 182,451065, which the Defendant imposed on the Plaintiffs on November 1, 2011, the imposition of KRW 182,451065.

The part exceeding 161,572,162 won shall be revoked.

B. Each of the plaintiffs' remaining claims is dismissed.

2. Of the litigation floor costs, 80% is borne by the Plaintiffs, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance shall be revoked. The part exceeding 68,133,427 won among the disposition of imposition of inheritance tax of KRW 182,451,065 against the plaintiffs shall be revoked.

1. A part citing a judgment of the first instance;

이 법원이 설시할 이유 중 _처분의 경위、1원고들의 주장'，|관계 법령' 부분과 판단 부 분 중 비 사건 채권이 회수불가능한 채권인지 여부' 부분은 제1심 판결서 2쪽 4행부터 6쪽 5행까지의 각 해당 부분 기재외, 행정소송법 제8조 제2항, 민사소송법 제420조 본문에 의하여 이를 각 인용한다.

2. Parts to be newly used;

A. Summary of the plaintiffs' assertion that the imposition of unfair under-reported additional tax is improper

The plaintiff's act of not including the value of inherited property because the claim in this case was judged to be a 1-gu unit code that can not be recovered even though the plaintiff had been in progress before the return of inheritance tax, and the plaintiff's act of not reporting as inherited property does not constitute an unfair method under Articles 47-2 (2) and 47-3 (2) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter the same shall apply) and thus, it is unlawful to impose the defendant's penalty tax on the plaintiffs.

B. Relevant statutes

Article 47-3 (1) of the former Framework Act on National Taxes provides that "where the tax base reported by a taxpayer falls short of the tax base that should be newly established under the tax-related Acts, the ratio of the amount equivalent to 1/100 of the amount calculated by adding the amount equivalent to the under-reported tax base to the amount to be added to the amount to be added to the amount to be added to the amount to be left," and Articles 47-3 (2) 1 and 47-2 (2) of the former Enforcement Decree of the Framework Act on National Taxes provides that "any person who violates the duty to report the tax base or tax amount of national tax on the basis of concealing or pretending all or part of the tax base or tax amount to be used as the basis for calculating the tax base or the amount of national tax (the method prescribed by Presidential Decree as the basis for the taxpayer to avoid the duty to report the tax base or the amount of national tax)" provides that the amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax base by the amount to be added to the amount to be added to the tax base.

1) The meaning of an unfair method

Article 47-3 of the former Framework Act on National Taxes, and Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes provides that when considering the language and text of each subparagraph of Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes, and the legal nature of under-reported additional taxes, where penalty taxes are imposed for an unlawful under-reported return, it is impossible or considerably difficult to collect tax if all or part of the facts that serve as the basis for calculating the tax base of national taxes are concealed or fictitious. Therefore, it is understood that imposing penalty taxes much higher than the general under-reported return than the general under-reported return in order to induce taxpayers to faithfully report." Article 127(2) of the former Enforcement Decree of the Framework Act on National Taxes provides that "any other active act that does not constitute an unfair under-reported act or under-reported return constitutes an unlawful method under-reported act under-reported act under Article 27(1)6 of the former Enforcement Decree of the Framework Act on National Taxes, it is necessary to impose penalty taxes for an unlawful act under-reported or under-reported return.

이 사건에 관하여 살피건대，이 판전이 인용한 제1식판결의 이유에서 채택한 증거 와 을 제17 내지 21호증의 각 기재에 번론 전체의 취지를 종합하면，원고들은 2010.3.경 피상속인으로부터 이 사건 채권의 존재에 관하여 이야기를 듣고 난 후 2010. 10. 경 이 사건 채권의 채무자인 박연옥에 대한 재산조회절차를 거치기도 하였고 윤석우와 박연옥의 부동산에 대하여 등기부를 조회하였으나 경매절차가 진행 중이거나 이미 설 정된 근저당권의 채권최고액 등에 비추어 재산가치가 없다는 판단을 하였던 사실，이 에 원고들은 2이. 3. 31. 피고에게 상속세 신고를 함에 있어 이 사건 채권이 회수불가능채권이라 판단하고 이를 신고하지 아니하였던 사실을 인정할 수 있는바，원고들이 이 사건 채권을 신고하지 않음에 있어서 그 채권의 발견을 불가능하게 하거나 현저히 곤란하게 하는 위계나 다른 어떤 부정한 행위를 함이 없이 단순히 그 회수가능성에 대 한 그릇된 판단에 기초하여 채권을 신고하지 않았던 것을 들어 구 국세기본법에서 말하는 부당한 방빕'에 해당한다고 보기는 어렵고, 달리 이를 인정할 증거가 없다(원고들 이 당초의 상속재산 신고에서 이 사건 채권을 누락하였다가 피고가 피상속인의 금융거래 내역을 조사하여 이 사건 채권 을 상속재산으로 추가한 이후에야 비로소 원고들이 회 수불가능하다고 주장하였다거나 원고들이 이 사건 채권의 존재를 이미 알고 있었고 상속세 신고 후에 배당절차에서 배당받은 사실이 있다 하더라도 달리 볼 것은 아니라 것이다).

Therefore, the part of the defendant's imposition of inheritance tax against the plaintiffs 20,878,903 of the illegal underreporting penalty tax should be revoked as illegal, and this part of the plaintiff's assertion is with merit.

3. Conclusion

Therefore, the part exceeding KRW 161,572,162 among the disposition of imposition of inheritance tax of KRW 182,451,065 against the plaintiffs on November 1, 201 should be revoked. Thus, the plaintiff's claim of this case should be accepted within the scope of the above recognition and the remaining claims should be dismissed as there is no reason. The judgment of the court of first instance is partially unfair, and it is so decided as per Disposition by the court of first instance that the plaintiff's appeal was partially accepted and the judgment of the court of first instance was altered.