Scope of joint and several tax liability (including property donated within five years before the commencement of the inheritance)

The inheritance tax imposed on the deceased's inheritors within the limit of the value of the inherited property, including the value of the donated property, within five years before the commencement of the inheritance, shall be jointly and severally liable to pay the value of the inherited property, among the total value of the inherited property, including the

1. The plaintiff's appeal and the claim finalized in the trial are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 312,68,750 won and the amount calculated by the rate of 5% per annum from October 31, 1996 to the date the judgment of the first instance is rendered, and 20% per annum from the next day to the date of full payment (the plaintiff shall claim the return of additional dues from the original amount overpaid or erroneously paid inheritance tax to the date of the refund, but the plaintiff shall claim the return of additional dues from the next day to the date of the refund, as above, the portion of the principal claimed shall be reduced, and the interest rate for delay shall be reduced from the initial date and partial period (e.g., the interest rate of additional payment on additional refund from April 1, 201 to April 5, 202, the rate of additional payment on additional refund from April 8, 199 to the date of full payment). Thus, it shall be deemed that the purport of appeal has been reduced to the extent that the purport of the claim has been reduced).

1. Basic facts

The following facts are without dispute between the parties, or evidence Nos. 1, 2, 3, 5-1, 2, 7, 14, 15, 20 through 24 (including each number), 27-1 through 13, 28, 29, 30-1, 2, 32-1 through 3, 33-1 through 3, 2-2, 3-1 through 4, 3-2, 3-2, 4, 5-3, 7-3, 8-1 through 20, 9-1, 17, 28-2, 3-1, 2-1, 3-2, 3-2, 3-1, 3-2, 3-2, 3-1, 3-2, 3-2, 3-2, 2-1, 3-2, 3-1, 2-2, 3-2, 3-1, 2-2, 3

(a) Inheritance relationship;

(1) On July 23, 1974, 1991, a natural father between ○○ and ○○, a South-North Kim○ and a South-North ○○○, had been married with ○○○○, but there was no transplant between ○○○ and ○○○. The Kim○○ was married with ○○○○, and caused four copies among ○○○, Kim○, Kim○, Kim○, and Kim○○, on May 7, 1973. The Plaintiff was married with ○○○, and the Plaintiff was born with ○○○, Kim○, and Kim○○ and Kim○○, a natural father between ○○○ and ○○○○, on the same day. After that, on December 11, 1991, Kim○○ died, the heir of ○○ and ○○, Kim Jong-ok, Kim Jong, and ○○, ○○○, and ○○○, an heir of this case.

(2) On May 197, 1997, ○○ filed a lawsuit seeking confirmation of existence of paternity against Kim○ and Lee○○, and was sentenced to a judgment that there was no parental relation between Kim○○ and Lee○○, and the deceased Kim○, which confirmed that there was no parental relation (see Supreme Court Decision 97Do4186, Oct. 9, 1997). Accordingly, Kim○ was re-registered as a child between the Plaintiff and Lee○ on the family register on November 11, 1997.

(b) Inheritance tax voluntary declaration;

On June 10, 1992, the Plaintiff submitted an inheritance tax return and an export-import after Kim○'s death, and declared that there is no tax payable after deducting the amount of the gift tax payable in KRW 3,414,99,90,278, and the amount of the gift tax payable in KRW 6,027,178,790, and the tax base of KRW 5,841,473,08, and the amount of the tax calculated by deducting the amount of the gift tax payable in KRW 3,092,948,334 from KRW 3,414,90,229.

(c) Progress in imposing inheritance tax;

(1) The original decision

On June 1, 1993 and June 30, 1993, for reasons such as under-assessment of inherited property, etc., the head of ○○○ Tax Office (hereinafter referred to as the “head of 'the head of 'the head of 'the head of 'the head of 'the head of 'the head of 'the head of 'the initial decision and each correction disposition') under the defendant-affiliated ○○○ Tax Office (hereinafter referred to as the "the head of 'the head of 'the head of 'the disposition office') calculated by subtracting the value of inherited property from 5,251,240,012, and 7-2 of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993; hereinafter referred to as the "Act”) 1,77,423,390,390,396,390,390,396,396,196,394,

(2) The primary corrective measure

After that, on December 12, 1991, the disposition agency added the amount of tax on 00 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, 1.484,00 won for land on 13 lots, 1.489 square meters, 1.484,000, and on January 16, 1992, the transfer registration for land under the name of the Plaintiff was completed for 10 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 16616763697.

(3) The second corrective measure

The disposal agency has determined an amount of gift tax without deducting the amount of gift tax at the time of the initial determination with respect to the donated property included in the original value of the inherited property, but on February 28, 1994, the head of ○○○ Tax Office notified and paid the gift tax. On March 18, 1994, the disposal agency revaluated the inherited property assessed by applying the officially announced amount in 1992 as of December 11, 1991; on April 11, 1994, 2,652,68,392; on April 11, 1994, 2,610,70,770,338, 670, 3380, 370, 574, 374, 574, 98, 197, 397, 197, 397, 196, 397, 197, 397, 397, 197, 194, 197, 197, 25

(4) Lawsuits against the heir to return legal reserve of inheritance, etc.

○○○○○, Kim○, Kim○, and Kim○○ (hereinafter referred to as “○○○○”) was sentenced in around 192 to the effect that, in a case where the claim for cancellation, etc. of the ownership transfer registration filed against the Plaintiff and Kim○○ (hereinafter referred to as “○○○”) was filed against the Plaintiff and Kim○, the deceased Kim○ was found to have infringed on the legal reserve of inheritance of ○○○, etc. and that he returned the donated property (see Supreme Court Decision 92Da3645, 355, Feb. 8, 1995). The appellate court rendered a judgment to the same effect that partially changed only the legal reserve of inheritance of ○○○, etc. (see Supreme Court Decision 95Na1416, 14123, Dec. 5, 195). Accordingly, the appellate court’s judgment became final and conclusive as it became final and conclusive (see Supreme Court Decision 96Da578375, Apr. 16, 1996).

(5) The third corrective measure

The disposition agency made a correction of gift tax due to the change in donated property included in the amount of gift tax among the original value of inherited property on May 1, 1997, on May 31, 1997, by adding the amount of the inherited property to the value of KRW 2,930,775,827 (the amount was calculated by subtracting the amount of KRW 278,087,435 from the estimated value of the previous disposition), the amount of donation was calculated by adding the amount of KRW 4,32,682,93,903, the tax base was 6,903,481,070,574.914,558, the amount of tax was calculated by deducting the amount of KRW 105,133,716,421,4258,427,367,716,4767,757,716,757,307,7196,757,7,7197,4,7,767,767,7

(6) The fourth corrective measure

처분청은, 법 제9조 제1항 중 "상속재산의 가액에 가산할 증여의 가액은 ‥‥‥상속개시 당시의 현황에 의한다."는 부분이 헌법에 위반된다는 헌법재판소의 결정(헌법재판소 1997. 12. 24. 선고 96헌가19, 96헌바72 결정)과 관련한 국세청의 업무지시에 따라, 상속재산에 합산하는 증여재산의 평가시점을 증여 당시로 하기로 하여, 1998.12. 7. 망 김○○의 상속인들에게 상속재산가액을 2,930,775,827원, 증여가산액을 이전보다 877,088,490원을 감액한 3,455,594,413원, 과세표준을 6,026,392,580원으로 하여 산출한 세액 3,092,515,919원에서 신고세액 52,982,660원, 기납부증여세액 1,778,815,157원을 각 공제한 결정세액 1,260,718,102원에 납부불성실가산세 232,706,026원을 가산하여 총 결정세액을 1,493,424,128원(그 중 원고가 납부할 세액은 0원이다)으로 경정하고 기고지세액 중 383,187,632원을 감액하는 것으로 고지하였다.

(7) Revocation of disposition imposing inheritance tax by Kim○-○

On the other hand, as seen earlier, Kim○-○ filed a lawsuit seeking revocation of the imposition of inheritance tax against the disposition authority on the ground that it was not the deceased Kim○-○’s inheritor, and on December 29, 1998, the disposition authority rendered a judgment revoking the imposition of inheritance tax amounting to KRW 73,001,249 (the fourth corrective disposition) (the ○○ Court94Gu14591, 28200), and the appeal by the disposition authority was dismissed (Supreme Court Decision 99Du1496, 1502 delivered on May 17, 199).

(8) The fifth corrective measure

On July 26, 1999, the disposition agency added the amount of tax calculated by adding the value of inherited property to KRW 2,930,775,827, and KRW 3,455,594,413, tax base of KRW 6,026,392,52,580, and KRW 3,092,515,919, which is calculated by adding the amount of tax to KRW 50,489,016, the amount of tax of final donation, KRW 1,954,356,647 (the amount of tax of KRW 175,541,49), which is the amount of tax of KRW 1,087,670,670,256, and KRW 202,05,627,084, the total amount of tax of KRW 1,285,783,784,788, and the disposition agency notified the Plaintiff of the amount of tax.

(9) Action to revoke the disposition of tax payment notice

On April 4, 2001, an heir ○○○○○, Kim○○, Kim○○, Kim○○○, and ○○○○○○○○○○○○○, and (he heir ○○○○○○ died on May 1, 1993) filed a lawsuit seeking cancellation of the 5th rectification disposition against the disposition authority, on the grounds that the portion exceeding the amount of the 4th rectification disposition in excess of the gross amount of the 2th rectification disposition among the 5th rectification disposition of inheritance tax, and the portion exceeding the 3th rectification disposition in excess of the gross amount of the 4th rectification disposition among the 20th rectification disposition of inheritance tax and the 206th rectification disposition of the 4th rectification disposition is imposed with the exclusion period compared to the previous one, and thus becomes null and void.

D. Meanwhile, the Plaintiff succeeded to the amount equivalent to KRW 66,046,969 equivalent to the inheritance shares (2/7) out of the amount of KRW 231,164,392 of the existing inherited property at the time of commencement of the inheritance from the deceased Kim Kim○ at the time of commencement of the inheritance. In addition, within five years prior to the commencement of the inheritance, the Plaintiff received cash of KRW 1,499,335,955, and real estate of KRW 1,956,258,458, within five years prior to the commencement of the inheritance. Other real estate of KRW 152,280,00 was donated before the deceased’s birth, but completed the registration of ownership transfer for reasons of donation after the commencement of the inheritance. On the other hand, the property finally donated by Kim○○○○○○ is equivalent to KRW 1,321,

E. On June 28, 1993, the Plaintiff paid KRW 312,68,750 (the total amount of KRW 245,731,760 + penalty tax due to unpaid payment period + KRW 66,956,90) on May 28, 1994, the Plaintiff paid KRW 312,68,750 (the total amount of KRW 245,731,760 + penalty tax due to unpaid payment period).

F. The amount of gift tax paid or to be paid by the Plaintiff is KRW 3,732,00,00 in total of KRW 2,245,387,624 in annual installments, KRW 449,327,226 in annual installments, and KRW 1,037,30,015,930 in annual installments, and the amount paid among them is KRW 1,757,912,50 in annual installments and KRW 712,438,90 in total of KRW 2,470,351,40 in annual installments.

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff finally determined 0 won of inheritance tax to be paid by the plaintiff, and paid 312,68,750 won to the plaintiff as inheritance tax. Thus, the defendant is obligated to return the above amount to the plaintiff as unjust enrichment. Even if there is a joint and several tax liability for inheritance tax to be borne by other inheritors, such obligation is limited to 66,046,969 won, which is the value of the property actually inherited by the plaintiff due to the commencement of inheritance. Thus, the defendant is obligated to return 246,641,781 won (312,68,750 won - 66,046,969 won) paid by the plaintiff in excess of the actual value of the inherited property.

(2) As to this, the Defendant asserts that even if the Plaintiff’s inheritance tax paid in zero won, the Plaintiff bears the joint and several tax liability for the inheritance tax of other inheritors, and that the joint and several tax liability is limited to the amount of inherited property including the Plaintiff’s gift value, the Plaintiff’s total amount paid was appropriated for the repayment of the joint and several tax liability for the inheritance tax of other inheritors.

B. Determination

(1) Inheritance tax payable by the Plaintiff

Inheritance tax against the plaintiff was imposed by KRW 94,692,380 in the initial decision, and KRW 644,242,535 in the initial decision, and KRW 549,55 in the amount of 644,242,535 in the primary decision, and the difference was additionally imposed, and KRW 551,053,657 in the secondary decision, and KRW 440,722,630 in the third decision, respectively, were reduced to KRW 440,72,630 in the third decision, and the fact that the amount of inheritance tax against the plaintiff was reduced to KRW 0 in the fourth decision and the fifth decision was as seen in the above fact of recognition. Accordingly, the inheritance tax payable to the plaintiff for the property inherited from the deceased Kim-○ shall be zero won.

(2) The Plaintiff’s joint and several tax liability

Meanwhile, Article 18 of the Act provides that "the heir or testamentary donee is obligated to jointly pay inheritance tax according to the ratio of possession of the property that the heir or testamentary donee received or is to receive (paragraph (1)) among inherited property (including donated property added to the above inherited property pursuant to the provisions of Article 4, KRW 2, KRW 3, KRW 508, KRW 47, KRW 97, KRW 486, KRW 97, KRW 497, KRW 57, KRW 969, KRW 57, KRW 496, KRW 97, KRW 57, KRW 97, KRW 496, KRW 57, KRW 969, KRW 57, KRW 969, KRW 496, KRW 57, KRW 97, KRW 5796, KRW 969, KRW 97, KRW 4969, KRW 969, and KRW 97, value of the inherited property which the plaintiff had received within 5 years prior to the commencement.

(3) Therefore, the allegation of unjust enrichment on the premise that the Plaintiff paid inheritance tax in excess of the limit it owes is without merit.

3.In conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason. The judgment of the court of first instance on the part of the principal and the damages for delay (excluding the part extended in the trial) of this case is just in conclusion, and the plaintiff's appeal is dismissed, and the expanded damages for delay in the trial is also dismissed as it is without merit. It is so decided as per Disposition.