[1] Whether the value of the property donated by the decedent to his/her spouse within a certain period from the commencement date of inheritance to the spouse within a certain period prior to the commencement date of inheritance is subject to the spouse deduction under Article 19(1)

[2] In calculating the amount of the spouse deduction under Article 19(1) of the former Inheritance Tax and Gift Tax Act, whether the amount calculated under the proviso of the same Article is the amount of the spouse deduction (negative)

[1] Legislative purport of the spouse deduction system, purport of the provision that the property should be added to the inherited property, and in calculating the limit of the spouse deduction under the proviso of Article 19(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6048 of Dec. 28, 1999), the reason why the value of the property donated to the spouse among the donated property added to the inherited property should be deducted from the inherited property, and its substance should not be converted into the inherited property. If the inheritance tax amount is deducted from the inheritance tax amount on the ground that the donated property becomes the object of the spouse deduction, even if there is no need to deduct the amount of gift tax on the donated property, it does not need to be included in the inheritance tax amount on the inheritance property even if the gift tax amount is deducted from the inheritance tax amount on the inherited property, which is clearly included in the inheritance tax amount assessment amount on the inherited property, including the value of the donated property donated to the spouse under the main sentence of Article 28(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 28, 19, 19).).

[2] The main sentence of Article 19(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6048 of Dec. 28, 1999) provides that "the amount of actual inheritance of a spouse" shall be subject to the spouse's deduction, and the proviso shall be interpreted by adding the above general clause to the value of the inherited property "(if the amount of actual inheritance exceeds the amount calculated after the latter), the amount shall be calculated by multiplying the value of the inherited property by the spouse's legal share of inheritance under Article 1009 of the Civil Act, which is calculated by multiplying the value of the inherited property by the spouse's statutory share of inheritance under Article 109 of the Civil Act."

[1] Article 13(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998); Article 19(1) and (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6048 of Dec. 28, 199); Article 28(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 29, 2000); Article 28(2) of the former Inheritance Tax and Gift Tax Act / [2] Article 13(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 199); Article 19(1) and (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6048 of Dec. 28, 199); Article 28(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 3008 of Dec. 28, 2009)

[1] Supreme Court Decision 94Nu2480 delivered on August 26, 1994 (Gong1994Ha, 2559), Constitutional Court Order 99HunBa120 delivered on November 29, 2001 (HunGong63, 1127)

[Defendant-Appellee] Plaintiff 1 and 3 others (Law Firm Han, Attorney Kim Jong-ho, Counsel for defendant-appellee)

Samsung Head of Samsung Tax Office

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s imposition of KRW 34,247,633 of the inheritance tax on April 1, 2001 against the Plaintiff’s land, and the imposition of KRW 113,802,685 of the inheritance tax on the Plaintiff’s land, as well as the imposition of KRW 4,524,458 of the inheritance tax on the Plaintiff’s land, respectively, shall be revoked.

1. Details of the imposition;

A. On August 4, 1998, the deceased Cho Jong-dong (hereinafter “the instant donated property”). On June 20, 1996, the deceased on August 20, 196, the deceased Cho Jong-dong (hereinafter “the deceased”), who was his wife, and the Plaintiff Cho Jong-dong (hereinafter “Cho”), died, who was his wife, and his children. On June 4, 1998, the deceased on June 20, 1996, the deceased on June 20, 1996, the deceased on June 20, 196, the deceased on June 1, 1996, the deceased on June 371, 161,595,000 won (hereinafter “the instant donated property”). The value of inherited property inherited through consultation and division following the death of the deceased Jeong-dong’s disease is KRW 591,240,221 won.

B. On February 1, 1999, the Plaintiff reported the inheritance tax due to the death of deceased deceased soldiers, and paid KRW 591,240,221, the sum of KRW 371,595,221, the value of the inherited property inherited through the consultation and division of the inherited property, and KRW 962,835,221,00,00,000,000,000 of the value of the inherited property of this case, and accordingly, the tax base calculated accordingly, was 2,997,748,985,985, and the aggregate amount of the total amount of the inheritance tax (including each reported and paid additional taxes, hereinafter the same shall apply) to KRW 854,873

C. On April 1, 2001, the Defendant: (a) on the ground that the value of the instant donated property is not subject to a spouse deduction, the Defendant: (b) considered only KRW 591,240,221 as the value of the inherited property inherited through a consultation and division; (c) accordingly, determined the tax base of inheritance on the Plaintiffs due to the death of the deceased soldier’s disease as the amount of inheritance tax to be KRW 3,369,343,985; (d) determined the total amount of inheritance tax to be KRW 1,01,972,513 as the sum of the statutory inheritance determination amount to be KRW 1,01,972,513; (c) determined the legal inheritance amount to be KRW 33.34%; (d) 371,595,000 as the value of the instant donated property; and (d) divided the Plaintiff’s paid KRW 854,873,297,297,2941 as the statutory inheritance amount to be paid.

D.However, on July 5, 2002, the defendant issued a decision to reduce the amount of inheritance tax for the plaintiffs due to the death of deceased soldiers on April 1, 2001, on the ground that the plaintiffs disposed of inheritance tax in accordance with their statutory shares of inheritance on April 1, 2001, the total amount of inheritance tax for the plaintiffs due to the death of deceased soldiers shall be 1,01,972,513 won in total as before: Provided, That pursuant to the consultation division ratio (21.80% of the plaintiffs' fixed land, 21.84% of the plaintiffs' fixed land, 72.44% of the plaintiffs' early land, 2.88% of the early land, 2.54, 87, 297, and 2.58% of the early disposition of inheritance tax, the defendant imposed a decision to additionally reduce the amount of inheritance tax by the previous disposition of inheritance tax, and the amount of tax paid by the plaintiffs' early payment on the plaintiff's land, 2.364, 2534, 157394,2734.

E. The plaintiff is seeking revocation of the part of the disposition of imposition corresponding to the amount of inheritance tax that the defendant notified to pay additionally on July 5, 2002. Accordingly, for convenience, the plaintiff's disposition of imposition equivalent to the amount of inheritance tax that the defendant notified to pay additionally among the remaining parts after reduction on July 5, 2001 (the plaintiff's right of imposition), 34,247,63 won (the plaintiff's right of payment), 4,524,458 won (the plaintiff's right of payment), and the part equivalent to the amount of 113,802,685 won (the plaintiff's right of imposition of inheritance on July 5, 2002) and the portion equivalent to the amount of 4,524,458 won (the plaintiff's right of imposition of inheritance tax on July 5, 2002) of the disposition of imposition of inheritance tax on the plaintiff's right of payment.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 3, Eul evidence 1-1, 4, Eul evidence 3, Eul evidence 4-1, 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful in accordance with the relevant laws and regulations, and the plaintiffs asserted that the disposition of this case is unlawful on the following grounds.

(1) The gift property of this case also constitutes the actual amount inherited by the Plaintiff’s land price according to the spouse deduction clause under Article 19(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6048 of Dec. 28, 1999), and thus, it should be deducted from the inherited property tax amount. However, the Defendant committed an unlawful act which did not deduct it in the disposition of this case.

(2) Article 19(1) of the above Act provides that "the amount actually inherited by a spouse due to the death of a resident shall be deducted from the taxable amount of inheritance taxes: Provided, That such amount shall be the amount calculated by multiplying the value of the inherited property by the statutory inheritance portion of the spouse stipulated in Article 1009 of the Civil Act, less the value of the property donated to the spouse, among the donated property added to the inherited property pursuant to Article 13," and the value of the inherited property as at the time of the death of a deceased soldier's disease, was 4,041,59,988, and the taxable amount of inheritance taxes calculated pursuant to Article 13 of the above Act was 4,486,390,988, and the amount of the spouse's deduction calculated pursuant to the provision of the above case was 1,123,868,662 won (4,390,988 won x 5,371,500 won x 5,291).

B. Relevant statutes

◎ 구 상속세및증여세법(1998. 12. 28. 법률 제5582호로 개정되기 전의 것)

Article 13 (Taxable Amount for Taxable Taxes) (1) Taxable amount of inheritance taxes shall be the amount obtained by deducting, under the provisions of Article 14, the amount obtained by adding the value of inherited property to the value of inherited property, which

1. The value of property donated by an ancestor to his/her heir within five years before the commencement date;

◎ 구 상속세및증여세법(1999. 12. 28. 법률 제6048호로 개정되기 전의 것, 이하 같다)

(1) The amount actually inherited by a spouse due to the death of a resident shall be deducted from the taxable amount of inheritance taxes: Provided, That such amount shall be the amount calculated by multiplying the value of the inherited property (excluding the property bequeathed, etc. by a testamentary donee who is not an heir among the inherited property, but including the property stipulated under Article 13 (1) 1; hereinafter the same shall apply) by the spouse’s statutory share in inheritance under Article 1009 of the Civil Act (where such amount exceeds three billion won, the ceiling shall be three billion won; hereinafter the same shall apply) less the value of the property donated to the spouse among the donated property added to inherited property pursuant to Article 13.

(3) In case of paragraph (1), if the spouse has no actual amount of succession or the amount of succession is less than five hundred million won, five hundred million won shall be deducted, notwithstanding the provisions of paragraphs (2) and (4).

◎ 구 상속세및증여세법(2000. 12. 29. 법률 제6301호로 개정되기 전의 것)

Article 28 (Gift Tax Credit) (1) The amount of gift tax (referring to the calculated amount of gift tax on the relevant donated property at the time of donation) on donated property added to inherited property pursuant to the provisions of Article 13, shall be deducted from the calculated amount of inheritance tax.

C. Determination on the first argument of the plaintiffs

Whether the amount of actual inheritance under the main sentence of Article 19(1) of the former Inheritance Tax and Gift Tax Act includes the amount of property received in advance by a spouse included in the taxable amount of inheritance taxes under Article 13(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998).

The purport of Article 19(1) of the former Inheritance Tax and Gift Tax Act, which provides the spouse’s mutual aid system, is to withhold taxation up to a certain percentage of the entire inherited property and then complete taxation when the remaining spouse dies, taking into account the fact that the inheritance between the spouse is not a vertical transfer different households, but a horizontal transfer of property between the same household and the spouse’s contributory portion in the formation of the inheritee’s property.

Meanwhile, from Article 13(1)1 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998), Article 13(1)1 to include the value of the property donated by an ancestor to his heir within five years prior to the commencing date of inheritance in the taxable amount of inheritance tax is a provision for preventing the act of avoiding high rates of inheritance by making a donation to his heir before the commencing date of inheritance which is subject to the taxable amount of inheritance tax and thereby preventing an act of reducing the burden of inheritance tax by avoiding the application of high rates. Thus, it does not change the actual relation between the inheritance of the donated property and the inheritance tax (see Supreme Court Decision 94Nu2480, Aug. 26, 1994). However, in order to prevent such double taxation, where the donated property is added to the inherited property donated by an heir, the gift tax and the inheritance tax may be imposed concurrently on the same property. In addition, Article 28(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301, Dec. 29, 29, 20000) provides for deduction of the gift tax amount

However, the proviso of Article 19(1) of the former Inheritance Tax and Gift Tax Act appears to be a provision setting the limit of spouse deduction within the scope of statutory inheritance as follows. In calculating the limit of spouse deduction, the provision that the value of donated property among donated property added to inherited property should be deducted from the value of donated property among donated property added to inherited property is to the extent of "specific inheritance portion" under Article 1008(Share of Special Beneficiary) of the Civil Act in cases where a prior donation was made, since the inheritance for which a spouse, who is a special beneficiary, can actually receive pursuant to Article 1008(Share of Inheritance Tax and Gift Tax Act, is reduced to the scope of "specific inheritance portion". In other words, the purport of the proviso is that the spouse deduction is within the scope of "specific inheritance portion" under Article 1008 of the Civil Act (see Constitutional Court Order 9Hun-Ba120, Nov. 29, 2001).

As seen above, in calculating the legislative purport of the spouse deduction system, the legislative purport of the provision that the property should be added to the inherited property, the reason why the value of the donated property should be deducted from the inherited property among the donated property added to the inherited property, and the reason why the donated property should be added to the inherited property, which is not the real conversion of the inherited property into the inherited property. If the inheritance tax amount is deducted from the inheritance tax amount on the ground that the donated property becomes the object of the spouse deduction among the donated property added to the inherited property, even though there is no need to deduct the amount of gift tax on the donated property, even though there is no need to deduct it, Article 28(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 29, 200) provides that the amount of gift tax on the donated property added to the inherited property, including the value of property donated to the spouse of the deceased, should be deducted from the inheritance tax amount calculated on the premise that the value of the donated property added to the spouse under Article 19(1) of the former Inheritance Tax and Gift Tax Act does not include the value of the inherited property.

Therefore, the instant disposition that does not include the value of the donated property of this case in the amount of spouse deduction is legitimate, and the plaintiffs' first argument is without merit.

D. Judgment on the second argument by the plaintiffs

In calculating the amount of spouse deduction under the proviso to Article 19(1) of the former Inheritance Tax and Gift Tax Act, it shall be considered whether the amount calculated under the proviso to the same Article becomes the amount of spouse deduction immediately.

Article 19(1) of the former Inheritance Tax and Gift Tax Act provides that "the amount actually inherited by a spouse due to the death of a resident shall be deducted from the taxable amount of inheritance taxes." The proviso provides that "However, such amount shall be the value obtained by subtracting the value of the property donated to the spouse, among the donated property added to inherited property under Article 13, from the amount calculated by multiplying the value of inherited property by the legal inheritance portion of the spouse stipulated in Article 109 of the Civil Act," and there is no room to regard the amount of spouse deduction as the amount calculated under the above proviso.

(6) In light of the above purport of the Inheritance Tax and Gift Tax Act, the spouse’s deduction amount is most consistent with the original purport of the spouse deduction system only if the spouse’s economic benefits accrue to the spouse based on the status of the inheritee’s property at the time of commencement of inheritance. It goes against the purport of the spouse deduction system. However, if the spouse’s deduction amount uniformly is calculated by multiplying the value of the inherited property by the value of the inherited property under the proviso of Article 19(1) of the former Inheritance Tax and Gift Tax Act as alleged by the Plaintiff, it does not mean that the spouse’s actual amount of inheritance should be deducted from the value of the inherited property under the proviso of Article 19(1) of the former Inheritance Tax and Gift Tax Act.

Therefore, the amount of KRW 1,123,868,62 calculated pursuant to the proviso of Article 19(1) of the former Inheritance Tax and Gift Tax Act shall not be deemed as the amount of spouse deduction, and the amount of KRW 591,240,221, the actual inheritance of the Plaintiff’s land pursuant to the main sentence of Article 19(1) of the same Act shall be deemed as the amount of spouse deduction. The instant disposition

3. Conclusion

Therefore, the plaintiffs' claims of this case are all dismissed, and it is so decided as per Disposition.

Judge Han-won (Presiding Judge)