Whether a disposition imposing capital gains tax on an inheritor for qualified acceptance is legitimate

Even if the plaintiff did not receive any payment from the successful bid price, the plaintiff has the economic effect of extinguishing the inheritance obligation due to inheritance, because the successful bid price was delivered to the creditors of the inheritee and the obligation was repaid to them, and thus the disposition of this case is legitimate.

Article 162 of the Enforcement Decree of the Income Tax Act: Time of Transfer or Acquisition

2017Gudan9665 Revocation of Disposition of Imposing capital gains tax

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Head of the tax office and 3

August 8, 2018

August 22, 2018

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

1. On August 10, 2017, the imposition of KRW 74,934,80 for the transfer income tax for the year 2013 by the head of the competent tax office, and KRW 7,493,480 for individual local income tax imposed by the head of the competent Si/Gun/Gu shall be revoked.

2. The Plaintiff, the Defendant Republic of Korea shall pay to the Plaintiff the amount of KRW 74,934,80 and the amount of KRW 7,493,480 from August 26, 2017 to the service date of a copy of the claim of this case and of the cause for modification, and the amount of KRW 1.6% per annum from the following day to the date of full payment.

1. Details of the disposition;

A. The deceased on May 7, 200 (hereinafter referred to as "the deceased") died, and on May 3, 2002, the plaintiff was judged as the inheritor of the deceased on May 3, 2002 by the Seoul Family Court 00 amband00.

B. On June 20, 2012, the Plaintiff succeeded to 1/6 shares of the real estate listed in the attached Table 1 List owned by the Deceased (hereinafter referred to as “the instant real estate”). On March 25, 2013, the Seoul Central District Court rendered a decision to commence a voluntary auction of the instant real estate at KRW 00,000, and the bid price was awarded in KRW 2,013,30,000 on March 25, 2013, and on April 26, 2013, the bid price was fully distributed to the obligees of the Deceased.

C. The head of the Defendant: (a) deemed that the successful bid of the instant real estate, inherited property, falls under the transfer time; (b) calculated gains on transfer equivalent to the Plaintiff’s inheritance shares by making the date of the successful bid as the date of transfer; and (c) imposed KRW 74,934,80 on the Plaintiff as income tax reverted to the year 2013; and (d) the head of the Defendant Si/Gun/Gu imposed KRW 7,493,480 on the Plaintiff, respectively (hereinafter collectively referred

D. The Plaintiff was dissatisfied with the instant disposition and requested to the Tax Tribunal on September 1, 2017, but was dismissed on November 16, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1, 7 evidence, Eul evidence 1-1, 2, Eul evidence 1-2, Eul evidence 1-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) Chapter 1;

As an inheritor who made a qualified acceptance, the Plaintiff did not belong to the Plaintiff as a transfer income equivalent to the share in the inheritance of the instant real estate that occurred from the above auction to inheritance creditors, and thus, the Plaintiff does not have any inherited property. Thus, the purport of the qualified acceptance system, namely, the disposition in violation of Article 1028 of the Civil Act, is unlawful.

(ii) Chapter 2;

The Plaintiff, as a qualified inheritor, is not liable for the repayment of the inheritee’s obligation to inheritance creditors with its own own property, and is merely liable for the repayment of the inheritee’s obligation to the extent of the property to be acquired by inheritance. Thus, the instant disposition that did not attach the proviso to pay to the extent of the property acquired by the inheritee’

(iii) Chapter 3;

The Plaintiff filed a declaration of renunciation of inheritance with the Seoul Family Court, and the above court rendered a ruling on the qualified acceptance of inheritance, and the Plaintiff’s renunciation of inheritance took effect at the time of the said declaration without relation to the above qualified acceptance judgment, and thus, the disposition of this case, based on the premise that the Plaintiff, who renounced inheritance, was inherited one-six shares of the real estate of this case, is unlawful

(iv) Chapter Four.

Since the instant disposition is unlawful, Defendant Republic of Korea and Si are obligated to pay the Plaintiff capital gains tax of KRW 74,934,80 for the year 2013 paid by the Plaintiff to the said Defendants, and individual local income tax of KRW 7,493,480 for the said Defendants, and respective damages for delay.

(b) Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

C. Determination

1) Determination as to Claims 1 and 2

The qualified acceptance of inheritance is wholly succeeded to inherited property and inherited property. However, it is premised on the succession of inherited property as a result of the division of debt and liability into the scope of inherited property (a limited acceptance is limited to the liability for inherited property within the scope of inherited property and does not exclude or restrict the qualified acceptor’s succession to the comprehensive rights and obligations regarding inherited property). The plaintiff, upon the death of the deceased on May 7, 200, acquired 1/6 shares of the real estate of this case, regardless of the registration of transfer in the name of the plaintiff pursuant to Article 162(1)5 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 25193, Feb. 21, 2014) by inheritance, regardless of the registration of transfer in the name of the plaintiff, on May 7, 200 where the inheritance commenced, the plaintiff acquired 1/6 shares of the real estate of this case, each of which was knocked at the above auction procedure, and the proceeds of the auction were also reverted to the plaintiff (see Supreme Court Decision 2000Du161969, Jul. 16, 20, 20000000.

In addition, the transfer income tax imposed according to the heir's share in the inheritance on the actual capital gains accruing from the auction of the real estate, which is an inherited property, is an heir's inherent obligation, and thus, the heir is not responsible for repaying his inherited property beyond the limit of the property acquired by inheritance. Thus, the disposition of this case on the premise that the Plaintiff has the obligation to pay transfer income tax on the capital gains accruing from the auction of the real estate in this case, which corresponds to the heir's share in inheritance, cannot be deemed as contrary to the purport of the qualified acceptance system, which provides for the protection of the heir, and it does not impose the proviso to pay within the limit of the property acquired by the inheritee's inherited property.

2) Determination as to the third proposal

There is no evidence to acknowledge that the Plaintiff filed a declaration of renunciation of inheritance with the Seoul Family Court, not the declaration of qualified acceptance of inheritance, and the Plaintiff’s third proposal is without merit.

3) Determination as to Section 4

Therefore, the plaintiff's fourth ground is without merit, which is premised on the illegality of the disposition of this case.

4) Sub-determination

Therefore, the disposition of this case imposing capital gains tax on the Plaintiff on the premise that the subject to whom capital gains equivalent to the Plaintiff’s inheritance shares due to the auction of the real estate of this case belongs is a limited inheritor corresponding to the Plaintiff’s inheritance shares is legitimate. The Plaintiff’s assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.