Incheon District Court 2010Guhap3002 (201.04.06)

Cho High Court Decision 2009J3250 (No. 12, 2010)

It is legitimate that the value of the inherited property is calculated at the arithmetic mean of the appraisal values of two appraisal corporations.

The calculation of the value of the inherited property at the arithmetic average of the appraisal values by two appraisal corporations is lawful. If an heir fails to report the inheritance tax base within 6 months from the date the inheritance commences, 50 million won shall be deducted in a lump sum, and the gift tax shall be imposed on the deceased and the cause and burden are different, it shall not be

2011Nu14762 Revocation of revocation of the imposition of inheritance tax

- Appellants

XX

The director of the North Incheon National Tax Office

Incheon District Court Decision 2010Guhap3002 Decided April 6, 2011

October 13, 2011

November 17, 2011

1. The plaintiff's appeal is dismissed.

2. The defendant's appeal is dismissed.

3. The costs of appeal shall be borne respectively by each party.

1. Purport of claim

On January 3, 2006, the Defendant revoked the part of KRW 62,692,254 of the disposition of imposition of inheritance tax of KRW 126,028,018, which was inherited on January 3, 2006 against the Plaintiff on June 15, 2010 (the Plaintiff withdrawn the lawsuit of the primary claim and reduced the conjunctive claim as above).

2. Purport of appeal

A. Plaintiff: The part against the Plaintiff regarding the conjunctive claim in the judgment of the court of first instance is revoked; and the Defendant’s disposition against the Plaintiff on January 3, 2006, imposing inheritance tax of KRW 126,028,018, which was inherited on June 15, 2010, revoked the part of KRW 62,692,254.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim on this part is dismissed.

(The Court's trial scope: The Court's decision dismissed the plaintiff's primary and conjunctive claims and partly accepted the conjunctive claims; on the other hand, the plaintiff and the defendant appealed only on the part against each of the plaintiff's conjunctive claims, which are subject to the Court's trial.

1. Details of the disposition;

A. The plaintiff, commercialA, and commercialB (hereinafter collectively referred to as "the plaintiff, etc.") are the inheritors of the SouthCC who died on January 3, 2006 (hereinafter referred to as "the deceased"), and the plaintiff and the upper BB are the deceased's spouse, and the deceased's children are the deceased's children. At the time of the death of the deceased, their property status is as shown in the attached Table 1 list.

B. The Defendant calculated the aggregate of KRW 1,237,152,500 on the attached list 1 through 4 as inherited property by investigating the inherited property of the deceased, who did not report the inheritance tax base and tax amount, and imposed KRW 40,875,710 on the Plaintiff, etc. on August 8, 2008 (the first disposition).

C. After that, when the land No. 5 on the Attached Property List 1 was confirmed as the deceased’s inherited property, the Defendant issued an additional imposition of KRW 368,563,320 (the calculated amount shall be less than KRW 368,563,327 or less than KRW 10; hereinafter the same shall apply) on January 3, 2006 to the Plaintiff, etc. on January 13, 2006 by adding it to the inherited property (the second disposition).

D. On August 21, 2009, the Plaintiff was dissatisfied with the second disposition and filed an appeal for inheritance tax with the Tax Tribunal on April 13, 2009. The Tax Tribunal accepted the Plaintiff’s claim on April 12, 2010. However, the Plaintiff asserted that “The reason for illegality of the second disposition was not specified by the heir” (including the purport that only the inherited property should be taxed on the inherited property that belongs to the Plaintiff through an agreement division) but the Tax Tribunal did not make any determination as to the allegation.”

E. Accordingly, on June 15, 2010, the Defendant revoked the secondary disposition, and notified the Plaintiff, etc. of KRW 368,563,320 of inheritance tax inherited on January 3, 2006, along with the list of the inheritance tax and the joint and several tax payers to be paid by inheritor. Among them, the Plaintiff’s tax amount to be paid by inheritor is KRW 126,028,018 (third disposition).

F. On October 201, the Defendant issued the said third disposition, but revoked ex officio the part exceeding KRW 62,692,254 of the inheritance tax imposed on the Plaintiff on the ground that the Plaintiff’s inherited property falls under 17.099% of the total inherited property value of KRW 2,225,824,500 due to the agreement division of inherited property such as the Plaintiff, etc. around October 201, when the instant case was pending in the trial.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 4, 13 evidence, Eul evidence 1-5, Eul evidence 4, 6, 14, Eul evidence 16-1, 2, and 3, and the purport of the whole pleadings

2. Determination as to the main safety port simultaneously

A. The defendant's assertion

The defendant asserts that it is unlawful since the plaintiff filed a lawsuit on the third disposition of this case without going through the legitimate procedure of the pre-trial under the Framework Act on National Taxes.

B. Determination

1) In the event that the tax authority changed the disposition subject to the disposition while the appeal procedure for taxation was in progress, and the relevant illegal grounds are common, the Commissioner of the National Tax Service and the National Tax Tribunal were given an opportunity to re-determine the basic factual relations and legal issues, such as when the preceding disposition was duly conducted, and in addition, in the event that there are grounds such as where the taxpayer seems to be harsh to have caused the taxpayer to go through the procedure of the preceding trial, the taxpayer may file an administrative lawsuit seeking the revocation of the disposition even without going through the procedure of the preceding trial (see, e.g., Supreme Court Decision 96Nu2200, Apr. 8,

2) On the other hand, the plaintiff filed a request for a trial with the Tax Tribunal by asserting that the tax liability was not specified for the second disposition by heir, and that there was an error in calculating the value of inherited property and inheritance deduction, and that the Tax Tribunal accepted the claim and accepted the claim and accepted the claim, and that the claim was not judged as to the fourth disposition, and the ground for illegality alleged by the plaintiff against the third disposition is common to the grounds for illegality alleged in the preceding trial procedure of the second disposition as follows. The demand for the cancellation of the third disposition by the tax authority and the Tax Tribunal to the plaintiff even if there was a lack of opportunity to make a judgment as to the above reason for illegality, would be harsh to require the plaintiff to go through the preceding trial procedure. The plaintiff can seek the cancellation of the second disposition without going through the preceding trial procedure. Therefore, the defendant's main safety defense is without merit.

3. Whether the third disposition of this case is legitimate

A. The plaintiff's assertion

1) Mistake in calculation of inherited property

① In calculating the value of inherited property, the Defendant calculated the land price No. 1 and No. 5 in the attached list No. 1 and the Plaintiff higher than the compensation paid by the head of Hongcheon Gun. ② The Defendant deducted KRW 500 million from co-inheritors, instead of applying the basic deduction and the disabled deduction.

2) Double taxation of gift tax and inheritance tax on the same inherited property

On January 5, 2009, the Defendant imposed each gift tax of KRW 101,828,90 on land No. 45,875,710 on land No. 1 on annexed Table 1, and of KRW 101,828,90 on land No. 5 of the same list, and subsequently imposed inheritance tax on the same property.

3) Of the deceased’s inherited property, part of the land (al.e., KRW 2.50 million) among the seven parcels of land No. 5 of the annexed property list No. 5 of the deceased’s inherited property does not constitute inherited property, and therefore, 2.5 million won equivalent to the market price of the above land should be excluded from the value

4) The Defendant calculated the inheritance tax amount of the Plaintiff on the basis of the notified tax amount of KRW 368,563,320, less the already paid tax amount of KRW 40,875,712 from the total determined tax amount. Since the already paid tax amount was paid by the Plaintiff on the Plaintiff’s account, the said tax amount shall be deducted from the total determined tax amount of the inheritance tax to be paid by the Plaintiff.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Judgment on the ground for appeal by the plaintiff

1) Determination as to the assertion that the calculation of inherited property was erroneous

A) According to Articles 60(1) and 61(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010); and Article 50(1)4 of the Enforcement Decree of the same Act, the value of inherited property shall be assessed on the basis of the commencement date of inheritance; however, in principle, the value of inherited property shall be assessed on the basis of the commencement date of inheritance; in cases of land without a publicly assessed individual land price, it shall be assessed on the basis of the publicly assessed individual land price; and in cases of land without a publicly assessed individual land price, it shall be assessed on the basis of

B) In addition to the overall purport of pleadings in the statements in Evidence Nos. 7, 8-1, 2, 3, 15, 16-1, 2, 2-1, 2-2, 2-1, and 4 of Evidence Nos. 16, the Defendant calculated the value of inherited property; the officially assessed individual land price for land Nos. 1 in the separate sheet No. 1 in the calculation of the value of inherited property; the price for land No. 5 in the same list without individual officially assessed land price is the arithmetic average of the appraised values of two appraisal corporations as of May 31, 2005; on the other hand, the Hongcheon-Gun assessed each value of the above appraisal corporation No. 705, 35, 500, 27, 208; on the other hand, the average of the appraised values of land No. 1 in the separate sheet No. 1 in the separate sheet No. 1 in the aggregate from the Plaintiff on Feb. 15, 2007; on the appraisal value No. 28.15.

According to the above facts, the defendant's calculation of the value of inherited property by reflecting the land price at the time of January 1, 2006 (attached Form 1 property list No. 1) and May 31, 2005 (land No. 5 of the same list) adjacent to the date of commencing the inheritance, which is the date of commencing the inheritance, is lawful as it is in accordance with the provisions of the law, and it is lawful as it is in accordance with the provisions of the law, and it is difficult to view that the defendant's calculation of the value of inherited property was erroneous solely on the ground that the land price at the time of December 1, 2006, which is lower than the above price

C) Furthermore, according to Articles 21(1) and 67(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010), where an heir fails to file a return on the inheritance tax base within six months from the commencement date of inheritance, the amount of KRW 500 million in the calculation of the inheritance tax base shall be deducted in a lump sum in the calculation of the inheritance tax base. As seen earlier, the fact that the Plaintiff et al. did not file a return on the inheritance tax base within the said period is as seen earlier. Therefore, it cannot be deemed that the Defendant erred in the calculation of the inheritance tax base and thus, the Plaintiff

2) Determination of double taxation assertion

In addition to the purport of the argument in Eul evidence 1-4, Eul evidence 1-2, Eul evidence 7 through 12, Eul evidence 13-1 and Eul evidence 13-2, the following facts are as follows: ① Land listed in the separate sheet 1 is the land acquired by Lee Dod, the plaintiff's external mother, around November 3, 1955, acquired by inheritance; ② South E, SouthF, and SouthGG due to the death of Lee Dod's mother, inheritance of 1/3 shares, respectively); ② The aggregate of shares owned by the plaintiff's mother and SouthG were 2/3 shares, following an agreement on division of inherited property on May 13, 2002; ⑤ The remaining FF ownership was acquired by the deceased according to the donation of South FF on the same date; ③ The tax office imposed the gift tax on the plaintiff's remaining 1/3 of the inheritance tax after the death of Dod's mother; ④ The inheritance tax was imposed on the plaintiff's remaining 2/13 of the inheritance tax on the deceased 20.

According to the above facts, gift tax imposed on each land listed in the attached list 1 is imposed on the deceased on May 13, 2002 by gift as of May 13, 2002, and the cause and burden are different from the inheritance tax imposed on the plaintiff et al., and even if the plaintiff et al. is liable for the tax due to a separate reason such as inheritance, since the amount equivalent to the tax is deducted from the value of inherited property and excluded from the subject of imposition of inheritance tax, the plaintiff'

3) Determination as to the assertion that part of the land listed in the attached property list No. 1 is not included in the deceased’s inherited property or the already paid tax should be deducted from the Plaintiff’s inheritance tax

In full view of the aforementioned facts, evidence Nos. 2, and 15, the purport of the entire pleadings is as follows: (a) each land No. 5 of the attached Table 1 is owned by the deceased; (b) the fact that the first disposition by the defendant against the plaintiff was made on August 28, 2008 that the upperA paid all inheritance tax of KRW 40,875,710, including inheritance tax amount to the plaintiff on August 28, 2008; and (c) there is no counter-proof of the subsequent evidence, the plaintiff's assertion on this

D. Judgment on the defendant's appeal

The judgment of the court of first instance, after the plaintiff filed the lawsuit in this case against the defendant's third disposition, is 17.01% of the total value of the inherited property, and thus the court's decision that "the part exceeding 62,692,621 won, which corresponds to the plaintiff's share in inheritance among the defendant's third disposition, is revoked," is clear that the plaintiff filed an appeal against the part against the defendant's loss.

However, according to the above facts, the defendant revoked ex officio the part exceeding 62,692,254 won of the inheritance tax imposed by the third disposition on the ground that "the value of the plaintiff's inherited property falls under 17.099% of the total value of the inherited property due to the division of the plaintiff's inherited property by agreement around October 201, in which this case is pending in the trial (the defendant revoked by calculating the ratio of the plaintiff's inherited property value to the total value of the inherited property compared to the judgment of the court of first instance)" and accordingly, the part that the plaintiff revoked 62,692,254 won of the third disposition, which is 62,692,254 won of the third disposition, and thus the part that exceeds 62,692,254 won of the third disposition is not already extinguished, and it is not subject to adjudication by the court of first instance.

Ultimately, the appeal filed against the part exceeding 62,692,621 of the third disposition, which is the part against the defendant in the judgment of the court of first instance, shall be deemed to have been unlawful due to the lack of interest in the appeal.

4. Conclusion

Therefore, the plaintiff's conjunctive claim of this case reduced in the trial shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in this conclusion, the plaintiff's appeal is dismissed as it is without merit, and the defendant's appeal is illegal and dismissed as it is so decided as per Disposition.