Examination Inheritance 2012-001 (2012.06.01)

Omission in filing a report on bonds recognized as inherited property shall be subject to the illegal underreporting penalty tax.

In order to secure the disputed claim, the claimant filed a lawsuit in order to secure the disputed claim, and the obligor cannot be deemed to have the ability to pay, and thus, omission in filing a return of

Article 7 of the Inheritance Tax and Gift Tax Act

2012Guhap1653 Revocation of Disposition of Levying Inheritance Tax

1.LA 2.LB 3. RoCC

D Head of the tax office

July 25, 2013

August 22, 2013

1. The plaintiff's claims are all dismissed.

2. The plaintiffs shall bear the litigation costs.

On November 1, 2011, the Defendant’s disposition of imposition of inheritance tax OOOO as to the Plaintiffs is revoked in excess of KRW OOO.

1. Details of the disposition;

A. On September 19, 2010, the network Park E-E established Plaintiff LeeCC and its children, and died on September 19, 201, and the Plaintiffs calculated and reported the inheritance tax amount to be paid to the Defendant on March 31, 2011 on the basis of the OOOwon (tax base OOOB)’s taxable value of inherited property as an OOO.

B. After investigating the amount of inheritance tax reported by the Plaintiffs, and on September 21, 201, the director of the regional tax office notified the result of the tax investigation that the aggregate of four items of inheritance tax and four items of gift tax should be additionally imposed, on the grounds that there were omissions in the part reported by the Plaintiffs. On November 1, 2011, the Defendant, according to the result of the investigation by the director of the regional tax office of the regional tax office of the above regional tax office, added the aggregate of four items of inheritance tax and four items of gift tax to the KRW OOO of inherited property omitted on November 1, 2011 (i.e.,, the Plaintiff’s prior donated property + the KRW OOOOO of the Plaintiff’s prior donated property + the estimated inherited property KRW OOOOOA’s prior donated property + the estimated inherited property KRW OOOOA’s priorly underreported property property + the imposition and notice to the Plaintiffs on November 17, 2011.

C. The Plaintiffs filed a request for a national tax trial with the National Tax Tribunal on June 1, 2012 regarding the portion of the disposition on imposition of KRW OOO (hereinafter “instant disposition on imposition”) calculated based on the taxable value of the presumed inherited property among the inheritance tax OOO members additionally imposed on the Plaintiffs (hereinafter “instant claims”).

Facts that there is no dispute over the basis of recognition, Gap evidence 1 through 3, each of the evidence of subparagraphs 1 through 5 (including each number, if any) and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) The instant claim was issued by Park E as a means of lending OE to leF, and the collection of the said claim was impossible, and thus, the instant disposition that reported otherwise cannot be deemed as the taxable value of inheritance tax under the Inheritance Tax Act is unlawful.

(2) The Plaintiffs did not intentionally report the existence of the instant claim, such as filing an inheritance tax return through a tax agent, and did not report the tax base in an unjust manner, and thus, the Plaintiffs need to impose an additional tax for underreporting that is not an unfair underreporting.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Whether the instant claim is irrecoverable claims

구 상속세 및 증여세법(2011. 12. 31. 법률 제11130호로 개정되기 전의 것) 제60 조에 의하면， 상속세가 부과되는 재산의 가액은 상속개시일(이하 '평가기준일'이라 한다) 현재의 시가에 의하여야 하고， 같은 법 시행령 제58조 제2항 단서의 규정에 의하면， '대부금 ・ 외상매출금 및 받을어음 등의 채권의 전부 또는 일부가 평가기준일 현재 회수불가능한 것으로 인정될 경우'에는 그 가액을 상속재산가액에 산입하지 않는바， 여기서 말하는 '회수불가능한 것'이라 함은 채권회수가 불가능하다는 사실이 객관적으로 확정된 것을 의미한다고 보아야 하고， 한편 채권의 회수불능은 상속세과액 결정에 있어 예외적인 사유에 속하는 것이므로 이러한 특별한 사유에 대한 입증책임은 이를 다투는 납세의무자에게 있다고 할 것이다(대법원 1995. 3. 14. QQQ 94누9719 판결 등 참조).

In light of the above legal principles, the above 10 KK 2, 15 to 7, 12, 1 to 8, 2, 9 to 9, and 11 were used to determine 24% per annum on February 20, 208, and 10 to 00 KK 1 to 7, 20, 1 to 30, 20, 1 to 30, 206, 1 to 30, 1 to 30, 206, 1 to 30, 1 to 7, 200, 1 to 30, 1 to 7, 200, 1 to 30, 200, 1 to 7, 200, 1 to 30, 1 to 30, 1 to 7, and 1 to 3,000, 1 to 3,000, 1 to 3,000.

그러나 갑 제6호증， 갑 제13호증의 2 내지 11， 을 제10호증의 1， 2， 3， 을 제15， 16호증의 각 기재 및 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정， 즉 ㉮ 박HH은 평가기준일 직전인 2010. 5월경 토지 12필지 및 건물 1채를 제3자인 배MM에게 매도하여 이를 현금화한 것으로 보이는 점， ㉯ 박HH은 1998. 9. 1.부터 현재까지 OO시 OO동 1125 LLL 713호， 716호에서 부동산임대업을 해오고 있고， 2007. 1. 1.부터 2년 가량은 OO시 OO구 OO동 1104 III아파트 제상가동 제3층 제301호에서 직접 피아노교습소를 운영하기도 한 점， ㉰ 윤FF는 2005. 8. 10.부터 2010. 11. 25.까지 OO시 OO면 OO리 418-2 NN빌라에서， 2008. 12. 31.부터 2010. 11. 25.까지 OO시 OO면 OO리 418-2 소재 PPP요양병원에서 각 부동산 임대업을 하는 등 윤FF와 박HH 모두 평가기준일 당시에 부동산임대업을 하고 있었던 점， ㉱ 한국자산관리공사가 윤FF의 채권자들을 위하여 공탁한 공탁금에 대한 OO지방법원 안양지원 2011타기153호 배당절차 사건에서 원고들은 OOOO원을 회수 한 점，㉲ 윤FF와 그의 가족이 2011. 8. 전입한 OO시 OO동 844 소재 QQQ아파트의 전입일자를 기준으로 한 평균 전세가격이 OOOO원에 이르는 점，㉳ 윤FF는 2010. 2.부터 2011. 3.까지 국세 OOOO원을 납부하였는데 ， 그 중 OOOO원은 스스로 납부한 점, ㉴ 윤FF 및 박HH이 법원으로부터 평가기준일 당시 뿐만 아니라 현재까지도 파산선고 및 면책결정을 받은 사실이 없는 점 등을 종합하여 보면， 앞서 본 인정사실만으로 평가기준일 당시 윤FF， 박HH이 무자력이라거나 이 사건 채권의 회수가 객관적으로 불가능한 상태에 있었다고 단정하기 부족하고， 달리 이를 인정할 증거가 없다.

Therefore, the plaintiffs' above assertion is without merit.

(2) Whether the imposition of an unjust under-reported additional tax is illegal

Article 47-3(2)1 and Article 47-2(2) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011) provide that "the amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the amount equivalent to the under-reported tax base to the tax base by the ratio of the amount equivalent to the under-reported tax base to the tax base to the tax base, as prescribed by Presidential Decree, shall be the basis for concealing or pretending the whole or part of the fact that serves as the basis for calculating the tax base of national tax and the amount of tax," and each subparagraph of Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012) provides that "the amount shall be calculated as the calculated tax amount," and each subparagraph of Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 20198) provides false recording or false entry of books, and false documents (Article 3).

In this case, the following circumstances, namely, the plaintiffs asserted that the claim in this case was recoverable at the time of the initial return of inheritance tax, and omitted from the return of inherited property when the plaintiff filed a return of inheritance tax, and had the defendant omitted from the return of inherited property. The defendant investigated the details of the deceased's financial transaction and added the claim in this case as inherited property, and asserted that it is impossible to recover the claim thereafter, and even if the plaintiffs received the execution clause for succession to the above notarial deed in the preparation of MaF as of November 8, 2010, it seems that the existence of the claim in this case was not reported. The plaintiffs received the payment of OOOOO in the Suwon District Court case on April 7, 2011, NOOOOO was not made at the time when the plaintiff filed a return of inheritance tax, and there was no reason to deem that the plaintiff under this case's allegation was legitimate for the defendant's return of inherited property in this case as of November 31, 2011.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.