Daegu District Court-2018-Gu Partnership-892 ( December 19, 2018)

Where the inherited property of an heir who has granted approval of inheritance is voluntarily sold, whether the heir is liable to pay capital gains tax;

Since the Plaintiff’s obligation of capital gains tax itself cannot be deemed to be limited to the limit of the property to be acquired due to inheritance by inheritance, it is legitimate to impose capital gains tax on the inheritor for the sale of real estate through voluntary auction, and it does not constitute an unlawful collection disposition of this case.

Article 88 of the Income Tax Act

2019Nu2092 Revocation of disposition of imposing capital gains tax

AA

BB Director of the Tax Office

Daegu District Court Decision 2018Guhap892 Decided December 19, 2018

June 14, 2019

July 26, 2019

1. The plaintiff's appeal and the plaintiff's claim to revoke the collection of additional tax selectively in the trial are dismissed.

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

1. Purport of claim

Optionally, the Defendant’s transfer income tax of KRW 98,052,100,00 for the Plaintiff on November 1, 2017

(including additional tax) revocation of the disposition of imposition, or the defendant made on November 1, 2017 to the plaintiff on November 1, 2017.

Tax collection disposition of KRW 98,052,100 (including additional tax) for the vested transfer income (hereinafter referred to as "collection disposition of this case").

(2) If the disposition of capital gains tax collection for the year 2017 is revoked by this court, the plaintiff shall

The claim was selectively added to the claim.

2. Purport of appeal

The judgment of the first instance is revoked. The transfer income tax reverted to the Plaintiff on November 1, 2017, which the Defendant rendered to the Plaintiff on November 1, 2017.

98,052,100 won (including additional taxes) shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this court's ruling is that the second instance court's ruling "7.2 of the 11st day of the second instance court's ruling" is "7.7.7. of the same year," and that the plaintiff's selective addition of claims by this court is as stated in the reasoning of the judgment of the first instance except for adding the following judgments to the claims selected by this court. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

A. The plaintiff's assertion

The sale proceeds from the auction of the land of this case were reverted to the obligees of the deceased, who are the decedent, and the plaintiff is clear that there is no income (economic profit) actually earned from the transfer of the land of this case. Thus, the plaintiff is not liable to pay the transfer income tax following the transfer of the land of this case. Ultimately, the collection disposition of this case is unlawful

B. Determination

The Plaintiff’s obligation to pay capital gains tax falls under the expenses for inheritance prescribed in Article 998-2 of the Civil Act, and the purport of the qualified acceptance system for the sake of protecting the inheritor’s property is to say that it is only a liability within the limit of inherited property with respect to a tax obligation equivalent to such inherited expenses. Furthermore, it cannot be deemed that the Plaintiff’s obligation to pay capital gains tax by qualified acceptance is limited to the property acquired by inheritance (see, e.g., Supreme Court Decision 2010Du13630, Sept. 13, 2012). Therefore, the collection disposition of this case by the Plaintiff’s qualified acceptance is not unlawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

The plaintiff's claim of this case is dismissed for all reasons. The judgment of the court of first instance, which dismissed the plaintiff's claim for cancellation of disposition of capital gains tax, is justified as the conclusion is consistent with this, and all of the plaintiff's appeal and the plaintiff's claim for cancellation of disposition of capital gains tax collection additionally added by this court are dismissed.