Seoul Administrative Court 2009Guhap27596 ( October 16, 2010)

National High Court Decision 2007Du2996 ( October 17, 2009)

The Plaintiffs are the nominal holders of deposits, etc., or are the holders of insurance contracts.

Since financial institutions are deemed to have concluded a deposit contract after verifying actual names at the time of opening a financial account, barring any special circumstance, the Plaintiffs are deemed to be the holders of deposits, etc. or the holders of an insurance contract, and any disposition that is deemed to be inherited property is unlawful.

2010Nu21312 Revocation of revocation of the imposition of inheritance tax

1. The HongA 2. RedB

○ Head of tax office

Seoul Administrative Court Decision 2009Guhap27596 decided June 16, 2010

December 16, 201

January 27, 2011

1. The defendant's appeal is all dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On April 10, 2007, the Defendant revoked each imposition of KRW 2,084,839,240 of the inheritance tax against Plaintiff HongA, KRW 1,076,339,826 of the inheritance tax against Plaintiff HongB, and KRW 1,505,54,191 of the inheritance tax against RCC.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Details of the disposition;

A. On September 20, 2005, the deceased RedD (hereinafter referred to as "the decedent") died after having left the GCC, the plaintiffs, children, and the Red E (hereinafter referred to as "heirs") as the bereaved family members.

B. On March 20, 2006, the inheritors reported the value of inherited property to KRW 9,68,053,199, the taxable value of inherited property to KRW 9,284,069,50, and the reported tax amount to KRW 319,312,78 (The reported tax amount to KRW 131,616,384, the Plaintiff HongA122,732,813, and the Plaintiff HongB64,963,591).

C. ○○○ regional tax office conducted an investigation of the inheritance tax conducted on the inherited property by the inheritors from October 10, 206 to February 27, 2007, 207 7: (a) 1, 3, 5, 8, 10, 12, 14 through 18; (b) 2, 36, 79, 79, 768, 79, 79, 275, 207, 207, 36, 47, 296, 79, 47, 96, 257, 306, 97, 197, 205, 197, 205, 306, 197, 256, 306, 306, 257, 306, 296, 305, 296, 275, 1997, 3636

D. On June 20, 2007, the plaintiffs appealed against the disposition in this case and filed an appeal with the Tax Tribunal. On April 17, 2009, the Tax Tribunal revised the tax base and the amount of tax after re-auditing whether the above financial property (the plaintiff RedA 4,640, 767 won, the plaintiff HongB 2,765, 765, 4897 won) stated in the attached Table 1 of the financial property in the plaintiffs' name can be seen as the contributors and owners of the above financial property (the plaintiff RedA 4, 640, 767 won, the plaintiff HongB 2,765, 4897 won) and the amount of tax can be seen as the inheritance tax and the amount of tax according to the results of re-audit.

E. Accordingly, ○○○ Regional Tax Office conducted a reinspection of inheritance tax on July 200 on the inherited property of the inheritee and notified the Defendant of the result thereof. The Defendant: (a) on August 18, 2009, the acquisition fund of 110-dong 104, KRW 52,000,000, KRW 472,640, KRW 740,000; (b) the above financial property of 4,640, KRW 740,103, KRW 767; (c) the aggregate amount of KRW 960,000, KRW 9750, KRW 306, KRW 9796, KRW 969, KRW 706, KRW 300,000; (d) the inheritance tax amount of KRW 506,000, KRW 975,000, KRW 975,000, KRW 975,096, KRW 975,539639,5,525.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, 17 evidence, Eul evidence 1 to 3, 16 evidence (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) The remaining financial assets (the Defendant excluded the financial assets listed in the above list Nos. 3, 16, and 19 from the inherited property and notified of inheritance tax correction and notification on August 18, 2009, excluding the financial assets listed in the above list Nos. 3 and 19, and the financial assets listed in the above list Nos. 16 are examined separately from the following) among the financial assets listed in the table No. 1 of the financial assets in the attached Table No. 3, 16, and 19 were included in the inherited property, which were the Plaintiffs’ real estate leased business income and revenues from hospital operations. Even

2) The amount of KRW 500,00,00, which was deposited in the company bank account in the name of FF listed in the [Attachment Table 1] No. 16 of the Financial Property List, was donated by the decedent to KimGG by borrowing the name of F, and was donated by KimGG before the decedent’s life. Since KimGG withdrawn it after the decedent’s death and deposited in its own account, it is not the inherited property of the decedent, and even if the Plaintiff HongG donated it to KimGG after the decedent inherited it, it was in violation of the principle of substantial taxation or the principle of double taxation, thereby imposing inheritance tax, and thus, the amount of gift tax paid by SGG from

3) Since the financial property listed in the attached list 2 of the financial property is a property donated by the decedent to the wife before his/her birth, the amount of the gift tax on the financial property should be deducted from the calculated tax amount pursuant to Article 28(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “Inheritance Tax Act”).

4) The Defendant deemed that the Defendant used KRW 1,34,942,037 out of KRW 1,41,472,508, which is a part of the funds deposited by the inheritee’s national bank account (Account Number: 000) within two years before the death of the inheritee, was unclear, and included the remainder of KRW 1,134,942,037, excluding the statutory deductible amount of KRW 200,000,000,000 in inherited property. However, the money deposited into the above national bank account is the Plaintiffs’ proprietary property, and even if not, 25,920,00 won was deposited into the GCC’s account; KRW 1,41,474,70,000,000,000,000, KRW 4705,000,000,000,000,000 won was KRW 1,570,000,00 won.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the first argument

A) Whether deposit holders, etc. are Plaintiffs

In a case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact is clearly indicated in the real name verification statement, etc., it is reasonable to interpret the deposit title holder, an actor, or a financial institution acting as the deposit title holder, as stated in the deposit contract statement, to be the party to the deposit contract. It is reasonable to clarify the legal relationship as to the party to the deposit contract. Furthermore, such legal principle as to the interpretation of the party to the deposit contract should be equally applied in cases where the deposit title holder was present at the financial institution and entered in the deposit contract or a third party, such as the fund contributor, etc. (hereinafter referred to as the “Contributor, etc.”) entered into the deposit contract as the proxy. Therefore, even though the deposit title holder takes the real name verification procedure according to the intent of the deposit title holder as the deposit title holder and prepares the deposit contract statement as the deposit title holder, if it is possible to see the contributor, etc. other than the deposit title holder as the party to the deposit contract through a real name verification procedure with the financial institution and the contributor, etc.

However, comprehensively taking account of each statement in Eul evidence Nos. 6 and Eul evidence Nos. 13 and 14 (including each number), it is deemed that financial institutions entered into a deposit contract, etc. after conducting real name verification as at the time financial account was opened, as a whole, at the time when the financial account in the attached Table Nos. 1 (excluding the financial assets listed in Nos. 3, 16, and 19) was opened. Thus, barring any special circumstance, the Plaintiffs are the holders of deposits or the holders of insurance contracts, etc., who are the nominal holders of deposits, etc., listed in the attached Table No. 1 (excluding the financial assets listed in No.

B) Whether the decedent donated funds such as deposits

(1) 갑 제2 내지 14, 17 내지 22, 27, 29, 30호증, 을 제1 내지 9, 11 내지 14, 16호증(각 가지번호 포함)의 각 기재에 변론 전체의 취지를 종합하면, 피상속인은 1995년경부터 1997년경까지 피상속인 소유의 ○○ △△구 △△동 573 대지 위에 주식회사 △△주택과 공동으로 97세대의 △△프라자아파트를 건립하는 시행사업을 하였던 사실, 피상속인은 위 사업을 할 무렵부터 사망할 때까지 위 사업에서 얻은 분양수입금과 자신이 소유하고 있던 부동산과 원고들이나 임CC에게 이미 증여한 부동산의 임대수입 및 병원운영을 통하여 얻은 수입 등의 대부분을 원고들이나 임CC 명의의 예금 계좌나 보험, 채권 등의 금융상품에 분산하여 이를 관리하면서 별지 각 금융재산 목록 기재 금융재산과 관련한 예금증서 등을 소지하고 있었던 사실, 세무당국의 조사 결과 피상속인의 위 시행사업과 관련한 1996년의 수입금액은 12,681,984,367원, 소득금액은 4,828,366,974원으로 결정된 사실, 원고들은 1995. 9. 27., 1995. 10. 27., 1996. 4. 27. 3차례에 걸쳐 17억 3,700만 원 상당의 만기 5년의 현물채권 또는 18억 8,000만 원 상 당의 장기신용채권을 구입한 이후 위 각 채권의 만기일인 2000. 9. 27., 2000. 10. 27., 2001. 4. 27. 위 각 채권의 만기 환급금의 1/2씩을 별지 금융재산 목록 1 순번 1 내지 4, 8, 9 각 기재와 같이 원고들 명의로 국민은행에 예치하였고, 위 금액의 합계는 4,865,033,580원으로 원고들의 위 금융자산의 상당 부분을 차지하고 있는 사실, 임CC은 전업주부로서 피상속인이 사망할 당시까지 별다른 수입원이 없었던 사실, 원고 홍AA는 1990.경 임대사업자로 등록하여 그 무렵부터 부동산임대업을 하였을 뿐만 아니라, 1993. 4. 27. ○○ ○○구 ◇◇동 298-6 지상 건물의 소유권을 취득한데 이어 1995. 12. 11. ○○ ○○구 ◇◇동 166-78, 166-81 지상 건물의 소유권을 취득하는 등으로 부동산 임대수입을 얻고 있었으며, 1990. 5.경부터 피부과 의원을 운영하여 의사로서 일정한 소득을 얻고 있었으나, 원고 홍AA가 종합소득세 납부와 관련하여 ○○세무서장에게 신고한 종합소득액은 1993년에 45,559,254원, 1994년에 43,835,982원, 1995년에 58,652,223원, 1996년에 97,687,337원, 1997년에 145,954,424원, 1998년에 114,550,288원, 1999년에 97,255,972원, 2000년에 108,920,794원이고, 그 이후로도 매년 약 1억 원 정도에 불과하였던 사실, 그런데 원고 홍AA는 위 의원 운영수입을 자신의 우리은행 계좌(계좌번호 : 0000) 등으로 관리하면서 아들 홍HH의 유학자금으로 매월 1,000만 원 정도를 송금하는 등 생활비로 대부분 사용하였을 뿐만 아니라, 1993. 4.경과 1995. 12.경 피상속인으로부터 증여받은 ○○ ○○구 ◇◇동 298-6 및 같은 동 166-78 외 1필지 지상에 연건평 1,716.33㎡인 상가 2동을 신축하였고, 1995. 9.경부터 1998. 1.경까지 사이에 원고 홍AA 명의의 별지 금융재산 목록 1 기재 금융재산과 관련이 없는 무기명채권 등 합계 19억 원 상당의 채권을 취득한 사실, 원고 홍BB 역시 1988.경 임대사업자로 등록하여 그 무렵부터 부동산임대업을 하였을 뿐만 아니라, 생모인 이II이 사망함에 따라 1989. 3. 12. ○○ ○○구 ●●동 425-15 지상 건물의 2분의 1 지분과 ☆☆시 ◆◆동 432-14 지상 건물을 상속받고 1997. 5. 12. ○○ △△구 ▲▲동 142-5 지상 건물의 소유권을 취득하는 등으로 부동산 임대수입을 얻는 이외에 2000.경부터 2004.경까지 피상속인이 경영하던 ☆☆의원에서 근무하면서 어느 정도의 근로소득을 얻고 있었으나(원고 홍BB는 근로소득으로 연 1,000만 원 정도를 세무관서에 신고하였다), 원고 홍BB가 종합소득세 납부와 관련하여 ○○세무서장에게 신고한 종합소득액은 1994년에 47,230,455원, 1995년에 38,307,500원, 1996년에 35,994,274원, 1997년에 63,263,707원, 1998년에 53,925,363원, 1999년에 74,175,404원, 2000년에 71,271,150원이고, 그 이후로도 매년 약 6,000만 원 에서 7,700만 원 정도에 불과하였던 사실, 원고들은 이 사건과 관련한 세무조사과정에서 별지 금융재산 목록 1 기재 금융재산(순번 제3, 16, 19 기재 금융재산은 제외)의 자금출처를 밝히지 못하였던 사실, 피상속인은 법무법인 ○○종합법률사무소 1997. 4. 11. 작성 증서 제1997년 제1843호로 자신의 소유 부동산을 임CC과 원고들에게 유증한다는 내용의 유언공정증서를 작성하면서 원고들 명의로 되어 있던 현물채권 또는 장기신용채권은 유증재산에 포함시키지 않았던 사실, 홍EE은 원고들 및 임CC 명의 별지 각 금융재산 목록 기재 금융재산이 피상속인의 상속재산임을 전제로 원고들을 상대로 ○○동부지방법원 2006가합8854호로 불법행위에 기한 손해배상 또는 유류분반환 청구의 소를 제기하였는데, ○○동부지방법원은 2008. 12. 24. 원고들 및 임CC 명의 위 금융재산은 피상속인이 생전에 원고들 및 임CC에게 증여한 재산이라는 이유로 불법행위에 기한 손해배상 청구를 기각하고 유류분반환 청구 중 일부를 인용하는 판결을 선고하였고, 홍EE은 위 판결에 대하여 ○○고등법원 2009나16058호로 항소한 후 2009. 9. 18. 위 금융재산은 원고들 및 임CC이 피상속인 생전에 증여받은 재산임을 전제로 유류분반환 청구만 하는 것으로 청구취지를 변경하였는데, ○○고등법원은 2010. 4. 30. 제1심과 마찬가지로 원고들 및 임CC 명의 위 금융재산은 피상속인이 생전에 원고들 및 임CC에게 증여한 재산이라는 이유로 유류분반환 청구 중 일부를 인용하는 판결을 선고하였으며, 현재 대법원 2010다42624호로 상고심에 계속 중인 사실, 임CC은 피상속인이 원고들에게 피상속인 소유 부동산 및 별지 각 금융재산 목록 기재 금융재산을 증여하거나 유증함으로써 공동상속인인 자신의 유류분이 침해되었다는 이유로 원고들을 상대로 ○○동부지방법원 2006가합12662호로 유류분반환 청구의 소를 제기하였으나 기각판결을 선고받았고, 위 판결에 대하여 ○○고등법원 2008나23028호로 항소하였으나 원고들 및 임CC 명의 위 금융재산은 피상속인이 생전에 원고들 및 임CC에게 증여한 재산이기는 하지만 반환할 유류분이 없다는 이유로 항소기각판결을 선고받았고, 위 판결은 그 무렵 확정된 사실 등을 인정할 수 있다.

(2) In light of the following circumstances, i.e., the decedent’s activities with a long time prior to his/her birth, i.e., the sale of real estate in the name of the decedent 1. From 195 to 197, △△ apartment units were built and had an outstanding ability to accumulate assets by re-investment in real estate. (ii) The heir continued to live in the name of the decedent 1 and CC. (iii) In light of the degree of the Plaintiffs’ income from the above real estate, most of the revenues from the decedent 1’s financial assets were recorded in the name of the decedent 6,00,000,000 won, and it was difficult to view that most of the Plaintiffs’ financial assets were distributed to the decedent 6,000,000 won, which were not recorded in the list of 1,000,000 won, and that there were no specific financial assets from the decedent 3,000,0000 won, including, but not limited to, 00,0000.

C) the timing of donation

Article 13(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998) provides that the amount of inheritance tax and gift tax shall be the amount calculated by subtracting the amount stipulated in Article 14 of the former Inheritance Tax and Gift Tax Act, such as public charges and funeral expenses, from the amount of the value of inherited property less the value of property donated by an ancestor to his heir within five years before the date of commencing the inheritance. Article 13(1) of the amended Inheritance Tax and Gift Tax Act of Dec. 28, 1998 provides that the amended Act shall include the value of property donated by an ancestor to his heir within ten years before the date of commencing the inheritance as inheritance tax and gift tax (Article 13(1) of the former Inheritance Tax and Gift Tax Act). Since the amended Act imposes inheritance tax and gift tax on which tax liability becomes effective after the date of commencing the amended Act, the amended Act shall apply the amended Act to the portion of donated property before the date of commencing the inheritance tax and gift tax under Article 13(2).19(1) of the former Inheritance Act.

However, as seen earlier, the plaintiffs deposited 1/2 of the maturity date of each of the above claims on September 27, 1995, October 27, 1995, and April 27, 1996 with 1.737 billion won and 1.7 billion won over three times on April 27, 1996, or with 1.8 billion won or long-term credit bonds with 1.8 billion won on September 27, 200, after purchasing each of the above claims, 1/2 of the above claims with 1/1,00 of the maturity date as stated in attached Table 1 to 4, 8, and 9 of the Financial Property List, and it is reasonable to view that the decedent deposited 1/2 of the above financial property with the National Bank under the names of the plaintiffs as stated in attached Table 1 to 1 to 4, 1995, and 1 to 188, and 200 of the above financial property list (excluding the above financial property list).

(d)Smallness;

Therefore, the separate sheet Nos. 1, 2, 4, 8, 9, and 18 of the financial assets listed in the separate sheet No. 1, 4, 1921, 191, 310 of the total amount of the financial assets (including the financial assets listed in No. 18 of the above list, which were based on the financial assets listed in No. 3 of the above list No. 1, which were already deducted from the value of the inherited property at the time of the disposition of this case) minus the remainder (4,921, 191, 310 won - above 4,921, 921, 191, 310 won - The plaintiffs' lease revenue, lease deposit, etc. related to the formation of the above 4,921, 191, and 310 won is not included in the value of the inherited property stated in the separate sheet No. 17,947, 979,810 won within the extent of recognition above.

However, the litigation data submitted in the argument of this case alone are those formed by the plaintiffs from among the financial assets listed in the attached Table 1 of the financial assets at the time of the disposition of this case, which are 2,953,429,975 won [the sum of the plaintiffs' real estate rental income of HongA from 1,016,614,822 won (the sum of the real estate rental income of the plaintiff HongA from 1990 to 196 + KRW 57,962,59 won + the sum of real estate rental income from 958,652,263 won) from 197 to 205 + KRW 21,360,000 + KRW 1,390,215,153 (the sum of the real estate rental income from the plaintiff HongBB real estate from 192 to 1996 + KRW 309,529,979,296,2997,5300,96,297,297,297.

2) Determination on the second argument

A) A donee of the previous financial property in No. 16 No. 16 of the attached table of the financial property

In light of the above facts, the following facts are insufficient to deem that the decedent directly donated the financial property indicated in No. 21, No. 21, No. 8, and No. 10 (including paper numbers) to the KimJ, which had been in a relationship with the Plaintiff HongA before the birth of the decedent, and there is no other evidence to acknowledge it. Rather, according to each of the above facts, it is reasonable to deem that the HF was under the name of the decedent, the decedent borrowed the name of the HF and opened the above account; the decedent was managing the financial property listed in No. 16 of the financial property list of the attached Table No. 16 until the decedent died; the court held that the above financial property was donated by the decedent to the Plaintiff HongA; and the facts recognized in No. 16 of the above facts are recognized.

B) Whether the amount of gift tax paid by Kim J is deducted

Even if the plaintiff HongA donated the above financial property to the deceased Kim J after he donated the above financial property to the deceased, it is separate from the donation by the deceased to the plaintiff HongJ, and thus, the gift tax paid by Kim J from the inheritance tax amount of this case cannot be deducted.

C) Accordingly, this part of the plaintiffs' assertion is without merit.

(iii)decision on the third argument;

Article 28 of the Inheritance Tax Act provides that the amount of gift tax on donated property added to the inherited property pursuant to the provisions of Article 13 of the same Act shall be deducted from the amount of inheritance tax calculated, and according to the facts recognized in the above paragraph (1), it is reasonable to view that the financial property listed in the attached Table 2 of the financial property is the fund that the predecessor donated to the forest andCC even if there was no explicit donation contract. Thus, the financial property listed in the attached Table 2 of the financial property list should be the property donated to the decedent. Thus, the amount of gift tax on the financial property listed in the attached Table 2 of the financial property that the decedent donated to the forest andCC before the commencement of the

However, comprehensively taking account of the overall purport of the arguments in each of the statements in Gap evidence Nos. 2 through 4, 17, Eul evidence Nos. 1 through 3, and 16 (including each of the numbers), the defendant, at the time of the disposition of this case, deemed that each of the financial assets listed in the above list is not the property donated by the decedent to the forestCC, but the inherited property possessed by the decedent in the name of the forestCC, and did not deduct the amount of the gift tax on the financial assets listed in the above list. Thus, the amount of the gift tax on the financial assets listed in the above

4) Judgment on the fourth argument

A) Article 15(1) of the Inheritance Tax Act provides that where the aggregate amount of money or debt borne by each type of the inherited property disposed of by an ancestor exceeds KRW 500 million within two years before the commencing date of the inheritance, the tax authority has actually converted the burden of proof in order to prevent unfair mitigation of inheritance tax by donation or inheritance in cash to an heir whose disposal price or loan money is not easy to be exposed to taxation data. Thus, if the tax authority proves that there is an objectively unclear amount among them, the amount may be included in the taxable value of inherited property unless the taxpayer proves its use. If the heir proves his/her use, it shall be excluded from the application of the taxation principle or the substance over form principle. In addition, even if the disposal price of inherited property is revealed that the disposal price of inherited property was deposited, delivered, or contributed to a third party, if the existence of the debt to the third party or the cause of contribution to the property has not been specifically verified, the use of the money is objectively obvious (see, e.g., Supreme Court Decision 9Nu138219, Aug. 23, 19996).

B) Comprehensively taking account of the overall purport of the arguments in Gap's evidence Nos. 2 through 4, 17, Eul evidence Nos. 1 through 3, and 16 (including various numbers), the whole purport of the arguments is as follows: (a) the funds withdrawn from the National Bank Account (Account Number: 000) within two years before the death of the decedent was 1,46,084,102; (b) the defendant alleged that the above 1,34,942,037 won out of the above 1,34,942,037 won was unclear; (c) the remaining 1,134,942,037 won out of the statutory deduction amount was included in inherited property; (d) the defendant's allegation that the above 1,34,942,037 won was repeated several times from the above national bank account of the deceased was insufficient to verify the place of use; and (d) the defendant's assertion that the above 1,3006 won was insufficient to recognize the above 134.7 billion won.

5) Sub-committee

A) Determination of the legality of a disposition in a lawsuit seeking revocation of a tax disposition is based on whether it exceeds a legitimate tax amount. The parties can submit objective tax bases and materials in support of the tax amount until the closing of the pleadings at a fact-finding court. When a legitimate tax amount to be imposed lawfully is calculated based on such materials, only the portion exceeding the legitimate tax amount should be revoked. However, if not, the entire tax disposition should be revoked. In such a case, the court is not obliged to actively calculate a reasonable and reasonable method of calculating the tax amount by finding out a reasonable and reasonable method of calculation ex officio (see, e.g., Supreme Court Decision 94Nu13527, Apr. 28, 1995).

B) In this case, "decision on the detailed calculation of inherited property" means 17,947,979,81 won as stated in [Attachment 1] 1, 2, 8, 9, and 18 of the list of financial property stated in [Attachment 1, 921, 191, and 310 which deducts the remainder of the plaintiffs' lease income, deposit money, etc. from the aggregate of 4,921, 191, 310 won as stated in [1, 61, 60,000 won as stated in [3] 9.3 billion won as well as 9.6 billion won as stated in [1,60,000 won as well as 9.6 billion won as stated in [1,60,000 won as well as 9.6 billion won as mentioned above] calculated by deducting the above amount of inherited property from the above amount of 9.6 billion won as stated in [1,600,000 won as reasonable amount of inherited property. 6 billion won as stated above.6 billion won.

Therefore, since the objective tax base of the inheritance tax of this case cannot be calculated, the entire disposition of this case cannot be revoked.

3. Conclusion

Therefore, the plaintiffs' claims of this case are accepted in its entirety due to the reasons, and the judgment of the court of first instance is justified with this conclusion, and all appeals of the defendant are dismissed. It is so decided as per Disposition.