Seoul High Court Decision 2013No. 2013.02

In the lawsuit against the claim for ownership transfer registration of the right to sell a hotel, it constitutes a ground for filing a subsequent claim for rectification due to the insolvency of the seller.

Article 45-2 (2) 1 of the Framework Act on National Taxes provides that "a final and conclusive judgment" shall not be refused if a judgment becomes final and conclusive at the time of determining whether to accept a request for correction or not, in full view of the circumstances such as whether to consider when determining whether to accept a request for correction, and whether it is not an application requirement to be met at the time of application for correction

Article 45-2 of the National Techniques

2013Guhap619444 Revocation of revocation of revocation of inheritance tax rectification

Law School et al.

The director of the tax office.

October 23, 2014

The defendant's rejection disposition of inheritance tax correction against the plaintiffs on September 30, 2011 shall be revoked.

Costs of lawsuit shall be borne by the defendant.

1. Details of the disposition;

A. On May 18, 2007, the Plaintiffs died on May 18, 2007, and succeeded to the deceased’s property with another inheritor (the decedent’s wife’s wife ○○○, his children Kim○, Kim○, Kim○, and Kim○), and the inheritors, including the Plaintiffs, reported and paid inheritance tax on November 1, 2007 with the inherited property as ○○○ and ○○○○○.

B. After that, the Seoul Regional Tax Office conducted a tax investigation on the inheritance of this case from August 4, 2008 to November 3, 2008, and then conducted a tax investigation on the inheritance of this case, and ○○○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ and seven parcels of land of the decedent (hereinafter “the hotel of this case”). The right of sale in lots (hereinafter “the hotel of this case”).

On December 10, 2008, the fact that ○○○○○ was omitted from inherited property, and on December 16, 2008, the Defendant notified the Defendant of the proposal for revision of inheritance tax, and on December 16, 2008, the Defendant corrected and notified the inheritance tax amount of KRW 180,511,375 to the inheritor, including the Plaintiffs. Accordingly, the inheritor, including the Plaintiffs, paid all the amount of inheritance tax rectification from December 31, 2008 to December 5, 201 with the annual payment permission.

C. On the other hand, on August 11, 201, on behalf of the remaining inheritors, Plaintiff Kim ○○ issued an application for correction of inheritance tax (hereinafter “instant application for correction”) seeking the reduction or correction of ○○○○○○○○○○○○○○ on behalf of the successors, including the Plaintiffs, on the ground that the right to sell the hotel of this case should be excluded from inherited property. However, on September 30, 201, the Defendant assessed inherited property at the value at the time of the commencement of the inheritance, and the registration of provisional disposition was not cancelled, such as the sale by the heir to the hotel ○○○○○○○○○, and the heir is deemed to have the right to claim reimbursement against the sale price to the Kim○○○○○○, and it was determined that the time limit for filing the application for correction has expired (hereinafter “instant disposition”).

D. The Plaintiffs filed a request for review with the Board of Audit and Inspection on December 29, 201, but was dismissed on August 29, 2013.

Facts that there is no dispute for recognition, described in Gap's 1 through 5, and 15, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Summary of the plaintiffs' assertion

In the lawsuit for the registration of ownership transfer against the hotel ○○○○○, which is a lawsuit on the right to sell the instant case subject to inheritance tax, the Plaintiffs became unable to acquire ownership under the above ○○○○○○○○○, and Kim○○ cannot claim compensation for insolvent damages or reimbursement. Therefore, the instant disposition rejecting a request for correction is unlawful even though it constitutes grounds for filing a subsequent request for correction under Article 45-2(2)1 of the Framework Act on National Taxes.

【Summary of the Defendant’s argument

Article 45-2 (2) 1 of the Framework Act on National Taxes, in order for transactions or acts, etc. which serve as the basis for calculating the tax base and the amount of tax in the first return, determination or correction to fall under "when it becomes final and conclusive differently by a final judgment (including reconciliation or other acts having the same effect as the judgment) on the lawsuit related thereto, the judgment on the lawsuit or acts which served as the basis for calculating the tax base and the amount of tax should be finalized. However, since the lawsuit instituted by the plaintiff Kim ○○ is against ○○ Trust Co., Ltd. (hereinafter referred to as the "○○○○ Trust") which is a third party, the lawsuit instituted by the plaintiff Kim ○○ is not a contracting party, but the trust contract is not a contract for a third party, and thus, it does not constitute "litigation or acts which are the basis for calculating the tax base and the amount of tax," the plaintiff's request for correction cannot be accepted before the judgment becomes final and conclusive (the plaintiff's request for correction becomes final and conclusive). Thus, the plaintiff's request for correction becomes final and conclusive.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Facts of recognition

(1) On September 6, 2005, the decedent entered into a contract with Kim ○○○○○○○○○○○○○, which is to sell the above ○○○○○○○○○○○○○○○○○ by the decedent, which is to delegate the management of the said ○○○○○○○○○○○○○○, and Kim ○○, for two years after the commencement of the business (the scheduled date of commencement of the business is September 1, 2006) and pay 12% of the above sales amount to the decedent, and from the following year, 70% of the total revenue of the guest room monthly (hereinafter “instant contract”).

Luxembourg paid ○○○ in full the sales price, subject to deduction of interest from advance payment to Kim○○ in accordance with the above contract.

Secondly, Kim ○, on the other hand, bears the obligation related to the implementation of the new hotel construction and sale business of this case.

The hotel site of this case on May 12, 2005, and the hotel building of this case on January 19, 2007, respectively, are entrusted to ○○○○ Trust on January 19, 2007, and around each trust deed, to ○○ Trust around each trust deed.

The registration of ownership transfer was completed based on trust.

As the decedent died on May 18, 2007, the plaintiffs changed their contract to be the party to the contract of this case.

(v) contrary to the contents of the instant contract, Kim ○ has not commenced on September 1, 2006, which is the scheduled date of commencement of business, and around October 2007, he requested the Plaintiffs to pay the instant hotel hotel ○○○○○○○○○○○○○○○○○, etc. on November 16, 2007. Accordingly, upon the request, the Plaintiffs paid the registration fee to Kim ○○○○○.

⑹ 그러나 김○○은 원고들에게 이 사건 호텔 ○○○호에 대한 소유권이전등기를 마쳐 주지 않았고, ○○○호에 대한 수익금도 전혀 배분해주지 않았다.

⑺ 이에 원고 김○○은 다른 원고들을 대표하여 2009. 4. 22. 이 사건 호텔 ○○○호에 대하여 처분금지가처분 결정을 받아 다음날 가처분등기를 하였고, 2010. 2. 8. ○○○신탁을 상대로 서울중앙지방법원 0000가합00000호로 소유권이전등기청구의 소를 제기하여 "이 사건 호텔 대지 신탁계약의 특약 제3조 제1항에 의하여 김○○○ 이 사건 호텔 ○○○호에 대하여 원고에게 소유권이전등기를 마쳐 줄 의무가 있고, 이 사건 호텔 신탁계약의 특약 제5조 제1항에 의하여 원고는 피고 ○○○신탁에게 직접 소유권이전등기를 청구할 권한이 있으므로, 수탁자인 ○○○신탁은 분양대금을 완납한 수분양자인 원고에게 이 사건 호텔 ○○○호에 관하여 소유권이전등기절차를 이행할 의무가 있다"는 취지로 주장하였으나, 위 법원으로부터 '○○○신탁은 원고에게 소유권이전등기의무를 지는 거래상대방이 아니고 위 신탁계약은 제3자를 위한 계약이 아니다'는 이유로 2010. 4. 15. 원고 청구 기각판결을 받았고, 원고 김○○이 항소하였으나 2011. 4. 15. 항소기각 판결을 받았으며, 다시 상고하였으나 2011. 9. 8. 상고기각 판결을 받았다.

⑻ 한편 이 사건 호텔에 대한 신탁계약에 따라 2011. 6. 23. 이 사건 호텔에 대한 공매공고가 실시되었고, 2011. 7. 6. 주식회사 ○○○ 리조트가 낙찰 받아 그 무렵 이 사건 호텔 ○○○호를 포함한 전체 호텔에 대한 소유권이 주식회사 ○○○ 리조트로 이전되었다.

⑼ 김○○은 2009. 10. 1. 무렵 체납액 합계 약 00억 원의 국세 및 지방세를 체납한 사실이 있고, 2010년 이후 현재까지 종합소득세를 신고・납부한 내역이 없으며, 2012. 4. 13. 기준으로 소유하고 있는 부동산 및 자동차가 없고, 신용등급은 11등급으로 불량 등급에 해당하며, 2009. 6. 25. ○○지방법원 ○○지원에서 채무불이행자명부 등재 결정이 있었고, 현재까지 채무불이행자 상태에 있다.

Facts that there is no dispute over recognition, Gap's statements in Gap's 6 through 15 (including a branch number if there is a serial number), Kim ○'s testimony, the court's fact-finding results against the Ministry of Land, Infrastructure and Transport and the National Tax Service, the purport of the whole pleadings.

D. Determination

(4) According to the reasoning of the judgment of the court below, it is difficult to find that ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s filing of a lawsuit claiming for the registration of the transfer of the Plaintiff’s property at the time of filing of the lawsuit on August 1, 201, and that the Plaintiff’s filing of a claim for the registration of the transfer of the Plaintiff’s ownership under Article 45-2(2)1 of the Framework Act on National Taxes (“○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s filing of the lawsuit seeking the registration of the transfer of the Plaintiff’s property at the time of filing of the claim for the registration of the transfer of the ownership.

D. Next, before the judgment of the plaintiffs on the above lawsuit for ownership transfer registration becomes final and conclusive, this objection

Article 45-2(2)1 of the Framework Act on National Taxes provides that a request for correction may be made when the transaction, act, etc., which served as the basis for calculating the tax base and the amount of tax in the initial return, determination or correction becomes final and conclusive as different by a final and conclusive judgment (including reconciliation or other act having the same effect as the judgment) in a lawsuit pertaining thereto. The judgment of the lawsuit claiming the transfer of ownership was finalized on September 8, 201, which was filed by the plaintiff Kim ○○, and the plaintiffs received the request for correction of this case on August 11, 201 as seen earlier, but the above facts were acknowledged by the above facts, i.e., the decision of the court below dismissing the Plaintiff’s request for correction on April 15, 201 when the decision of the court below was rendered on April 15, 201, and the decision of the court below which rejected the request for correction of this case on August 20, 201.

Article 22(1) of the Inheritance and Gift Tax Act provides that the hotel ○○○○○○○○ shall be excluded from the inherited property of the inheritee, and that the hotel ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ shall be excluded from the inherited property of the inheritee, and the instant disposition rejecting such a request for correction is unlawful.

3. Conclusion

If so, the plaintiffs' claims shall be accepted with due reason, and it is so decided as per Disposition.