Cho High Court Decision 2015Do2060 ( October 29, 2015)

Even if the heir fully performs his/her guarantee obligation on the joint property of the decedent and the heir, the relevant obligation cannot be recognized as the inheritance obligation.

Even if the heir fully performs the secured debt jointly borne by the decedent and the heir, the heir's right to reimbursement against the decedent cannot be deemed to exist legally. Therefore, the relevant debt cannot be recognized as the obligor's debt.

Public charges, etc. deducted from the value of inherited property under Article 14 of the Inheritance Tax and Gift Tax Act;

Article 10 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

2015Guhap74654

leAA

○○ Head of tax office

on January 20, 2016

on October 10, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On September 1, 2014, the Defendant revoked the part exceeding KRW 00,00 among the imposition of the inheritance tax ○○○○○ upon the Plaintiff.

1. Details of the disposition;

A. On May 18, 2013, the Plaintiff’s children of the MandoCC (hereinafter “the decedent”), who died on May 18, 2013 (hereinafter “the decedent”), and the leB is the Plaintiff’s children, and the DoD is the Plaintiff’s wife.

B. The decedent owned ○○○○○○-dong, Seoul (hereinafter referred to as “real estate owned by the decedent”), and the Plaintiff owned each of the instant real estate owned with ○○○○-dong, Seoul, ○○○○-dong, ○○○○○○-dong, ○○○○○-dong, and the building on the said ○○○○-dong, and the building on the said ○○-dong, respectively (hereinafter referred to as “the Plaintiff’s land and building collectively referred to as the “real estate owned by the Plaintiff,” and collectively referred to as “each of the instant real estate owned by the decedent,” and the Plaintiff and the decedent created a joint mortgage on each of the instant real estate in order to secure a maximum amount of debts owed to the Plaintiff financial institutions (hereinafter referred to as “the obligation of the instant maximum DD”).

C. The Plaintiff, at the time of the commencement of the inheritance, subrogated the entire secured debt of the instant case, and on the ground that the decedent, at the time of the commencement of the inheritance, was liable for reimbursement equivalent to the amount divided by the standard market value of the real estate owned by the inheritee among each of the instant real estate, the total value of the inheritee’s inherited property was calculated by subtracting ○○○○○ Won from the total value of the inheritee’s inherited property, and then, by calculating ○○○○○○ Won, the amount of the inheritee’s above secured debt of the inheritee’s deceased’s deceased’s inherited property, as the taxable value

D. From February 25, 2014 to June 4, 2014, the Defendant: (a) deemed that the decedent did not bear a liability for reimbursement against the Plaintiff; (b) determined the inheritance tax by adding the said ○○○○○○○○ to the taxable value of the inherited property; and (c) determined and notified the inheritor of the total amount of ○○○○○○○ of the inherited property by adding the unpaid tax amount and the determined tax amount after filing the first return on September 1, 2014 (hereinafter “instant disposition”).

E. On November 21, 2014, the Plaintiff filed an objection with the Director of △△ Regional Tax Office on November 21, 2014, but was dismissed on February 5, 2015. On April 24, 2015, the Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on June 29, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 8 through 10, Eul evidence 1 through 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff and the inheritee are the surety who has established a joint collateral security on each of the instant real estate in order to secure the best DD’s secured debt. Since the Plaintiff obtained an additional loan on each of the instant real estate as a collateral and subrogated to the Plaintiff for the entire secured debt of this case with the loan, the inheritee has to claim reimbursement of ○○○○, one of the above secured debt amount under Articles 370, 341 and 448 of the Civil Act, and the above ○○○○ should be deducted from the inherited property value of the inheritee.

Even if it is not the plaintiff but leB by subrogation of the secured debt of this case as the defendant's assertion, the conclusion that the above ○○○○ Won should be deducted from the value of the inherited property of the inheritee is not changed, since the decedent should demand the leB to recover his share of the secured debt of this case pursuant to Articles 739 and 741 of the Civil Code.

Therefore, the instant disposition should be revoked as it is unlawful on a different premise.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On July 15, 2005, the MaximumD borrowed approximately KRW 000 (the amount of the secured debt of this case) from the △△ Bank on April 9, 2009, and on April 1, 2009, the Plaintiff and the decedent borrowed approximately KRW 100 (the amount of the secured debt of this case), with respect to each of the instant real estate in order to secure the secured debt of this case, on July 18, 2005, the Plaintiff and the decedent created a joint mortgage on the maximum debt amount of KRW 00,000 on April 9, 2009 to the △△△△ Bank Co., Ltd., Ltd. with the maximum debt amount of KRW 00,0

2) On November 25, 2010, PapB borrowed ○○○○○ (hereinafter referred to as “instant loan”) from the credit cooperative of △△△ (Seoul Special Self-Governing Province, and the Plaintiff and the inheritee created a joint mortgage on each of the instant real estate to the credit cooperative of △△ Special Self-Governing City on the same day in order to secure the said loan obligation.

3) Each joint collateral security set forth in the foregoing paragraph (1) was cancelled on November 29, 2010.

[Reasons for Recognition] Evidence No. 3, Evidence No. 4, and the purport of the whole pleadings

D. Determination

There is no dispute between the parties regarding the fact that the secured debt of this case was subrogated for all of the secured loan of this case, but there is a dispute as to whether the principal who has repaid the secured debt of this case by subrogation of least DD is the plaintiff or the principal who is the principal of the loan of this case.

In the event that the Plaintiff subrogated to the secured obligation of this case, apart from the fact that one of the secured obligation of the secured obligation of the surety is able to exercise the right to indemnity against the other surety, the right to indemnity is premised on the existence of the other surety's obligation to exercise the right to indemnity against the other person. However, in the general sense, the surety is merely able to exercise the right to indemnity against the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligation of the secured obligee. In addition, the right to indemnity against the secured obligation of the secured obligation of the secured person of the secured obligation of the secured obligation of the secured obligation of the secured person can not be established in its own concept as well as the extent of the secured obligation of the secured obligation of the other secured obligation of the secured obligation of the secured person of the secured obligation of the secured obligation of the secured obligation of the secured person of the Civil Act.

Meanwhile, even if leB is deemed to have subrogated to the secured debt of this case, leB may not exercise the right of reimbursement directly against the decedent, who is the surety, who is the surety, by establishing a mortgage, etc. on the real estate owned by him/her for the purpose of securing another person's obligation, for the purpose of securing another person's obligation.

Therefore, under the premise that the plaintiff or leB is able to exercise the right of indemnity against the decedent, the plaintiff's assertion that the decedent was liable for the reimbursement of the amount equivalent to the ○○○○ at the time of commencing the inheritance has no merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.