Cho Jae-2016-west-1321 ( October 15, 2017)

Whether it is a domestic resident, and whether it is a dividend income accruing from a trust established overseas;

A person who has continuously resided in the Republic of Korea until the date of commencing the inheritance after the domestic domicile was completed shall be a resident, and any profit accruing from the trust that fails to meet the substantial requirements of the collective investment scheme among the trusts established

Article 1 of the Inheritance Tax and Gift Tax Act

2017Guhap78131 Revocation of Disposition of Imposing capital gains tax, etc.

NewA

◆◆세무서장 외 1명

July 5, 2019

August 23, 2019

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

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

Cheong-gu Office

피고 ◆◆세무서장이 20xx. xx. xx. 원고에 대하여 한 20xx. xx. xx. 상속분 상속세 ○○○원(가산세 포함)의 부과처분을, 피고 ■■세무서장이 20xx. xx. xx. 원고에 대하여 한 2009년 귀속 양도소득세 ○○○원(가산세 포함)의 부과처분을 모두 취소한다.

1. Details of the disposition;

A. The plaintiff is the finding of Korea-B(hereinafter referred to as "the decedent").

B. Korea-B died from 20x.x.x.x.x.x.x.x.x.x.x.x. the Plaintiff and the inheritors reported inheritance tax on the grounds that real estate located in Korea equivalent to 20x.x.x.00 won was inherited.

C. The director of the regional tax office of 00x.x.x.x.x.x.x.x.x.x.x.x.x. the inheritance tax investigation of the decedent and the transfer income tax investigation of the plaintiff. The heir, such as the plaintiff, omitted the report of the total amount of the real estate located in the United States of America (hereinafter referred to as the "U.S.") and the shares (hereinafter referred to as the "the shares of this case") (hereinafter referred to as the "the shares of this case"), and notified the defendants of taxation data.

"라. 이 사건 각 부동산은 20xx. xx. xx. 설립된 '###TRUST'(이하이 사건 신탁'이라 한다)에 신탁되었다가 피상속인이 사망한 후인 20xx. xx. xx. 및 20xx. xx. xx. 각 양도되었고, 피고 ■■세무서장은 위 부동산의 양도차익 000원이 이 사건 신탁의 수익자인 원고에게 귀속되는 것으로 보아 20xx. xx. xx. 원고에게 2009년 귀속 양도소득세 000원(가산세 포함)을 부과ㆍ고지하였다(이하 '이 사건 양도소득세 부과처분'이라 한다).",마. 피고 ◆◆세무서장은 원고가 피상속인으로부터 이 사건 주식을 상속받았음을 이유로 20xx. xx. xx. 원고에게 상속세 000원(가산세 포함)을 경정ㆍ고지하였다.

바. 원고는 이에 불복하여 심판청구를 하였고, 조세심판원은 20xx. xx. xx. 김CC에 대한 증여세 부과처분을 취소하는 결정을 하고 20xx. xx. xx. 원고의 상속세 및 양도소득세 불복청구는 기각하는 내용의 결정을 하였다. 피고 ◆◆세무서장은 김CC의 증여세 부과처분이 취소되어 원고에 대한 상속세 과세가액이 감소됨에 따라 20xx. xx. xx. 원고에 대한 상속세 중 ○○○원을 취소하여 현재 남은 상속세액은 ○○○원(가산세 포함)이다(이하 취소되고 남은 마.항의 상속세 부과처분을 '이 사건 상속세 부과처분'이라 한다).

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 2 through 4, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the disposition of inheritance tax of this case is legitimate

A. The plaintiff's assertion

1) Since the decedent had moved to the United States for permanent residence around 19x years, the decedent had been living in the United States, the center of economic interest, such as the establishment and operation of a company in the United States, but did not have a domicile or residence in the Republic of Korea, and there was no family living together in the Republic of Korea, and there was no family living together for at least one year. While the decedent temporarily returned to the Republic of Korea around 20x year, he was unable to depart from the Republic of Korea due to the loss of physical functions due to the brain strokes that occurred after his return, and did not enter the Republic of Korea for the purpose of permanent residence.

Therefore, since the deceased constitutes "non-resident" under Article 1 (1) 2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9269 of Dec. 26, 2008; hereinafter the same), the imposition of inheritance tax of this case on the ground that the plaintiff was inherited overseas inherited property of the deceased is unlawful.

2) Even if the decedent is a resident under the former Inheritance Tax and Gift Tax Act, the decedent is also a resident of the United States, and according to the criteria for determining the resident state of the decedent under the Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and the Encouragement of International Trade and Investment (hereinafter “Korea-U.S. Tax Treaty”), the instant disposition of inheritance tax is unlawful on the premise that the decedent

B. Whether an ancestor constitutes a resident under the former Inheritance Tax and Gift Tax Act

1) Relevant legal principles

A) Article 1(1)2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24358, Feb. 15, 2013; hereinafter the same) provides that the inheritance tax shall be imposed on all inherited property of a resident in cases where a person who has either established a domicile in the Republic of Korea or has established a temporary domicile in the Republic of Korea for not less than one year (Article 1(1)1) is deceased (Article 1(2)). The former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24358, Feb. 15, 2013; hereinafter the same) provides that the determination of a resident and a nonresident shall be governed by the corresponding provisions of the Enforcement Decree of the Income Tax Act (Articles 1(1) and 2(1)), but where a nonresident dies in the Republic of Korea after having returned to Korea for

B) According to the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same), the term “resident” means the place where a person has resided for a long time outside his/her domicile, such as the existence of his/her family living together in Korea and of assets located in Korea (Article 2(1)); and the term “place of residence” means the place where a person living in Korea has not formed a close general living relationship as his/her address (Article 2(2)). If a person living in Korea has a family living together in Korea and is deemed to reside in Korea for more than one year in view of his/her occupation and property status, he/she shall be deemed to have a domicile in Korea (Article 2(3)2); if a person living in or working in a foreign country has a foreign nationality (Article 2(4)1), or a person who has no family living in Korea and has no family living together with him/her, and is not recognized to have his/her domicile in Korea (Article 2(4).

C) In light of the contents and purport of the aforementioned relevant provisions, the distinction between a resident and a nonresident shall be determined by comprehensively taking into account the existence of a family living together in the Republic of Korea, domestic occupation and income status, assets located in the Republic of Korea, and domestic economic and legal relations. In particular, the term “family living together in the Republic of Korea” under Article 2(1) of the former Enforcement Decree of the Income Tax Act refers to a relative closely adjacent to living funds and places of residence in the Republic of Korea, and “where it is recognized that a resident is to live in the Republic of Korea for at least one year in view of occupation and property status” refers to cases where the resident is deemed to have been in need of residence in the Republic of Korea for at least one year, or where it is deemed that the management and disposal of assets will be carried out in the Republic of Korea for at least one year (see, e.g., Supreme Court Decision 2018Du60847, Mar. 14, 2019).

2) Determination

In full view of the following circumstances, the decedent is a resident under the former Inheritance Tax and Gift Tax Act, taking into account the facts of recognition as seen earlier, the statements Nos. 1, 5 through 9, and 24 through 26 together with the overall purport of the pleadings:

A) The decedent reported on emigration x.x. x. and transferred the immigration to the United States after having reported on emigration x. x. x. x. x. x. x. x. re-report on domestic domicile was completed.

B) The decedent had long resided in a foreign country from 20x to 20x, but the period of residence in the Republic of Korea was longer than the period of residence in the Republic of Korea in the 20x year, on which the domestic domicile was reported, and continued to reside in the Republic of Korea from 20x to 20x.x.x. death.

C) The decedent was continuously treated at domestic medical institutions, including Seoul 00 Hospital, 00 University Hospital, 00 University Hospital, and 000 Hospital at 00 University, after the outbreak of brain strokes around x.x.x.x.x. and around x.m.

D) After reporting the domestic domicile of the decedent, the decedent was living together with Korea-Japan, Han-GG and Korea, a de facto spouse of de facto marriage, and KimCC. The KimCC and Han-G were staying in Korea with the decedent for most of the periods since 20x years, and Korea-G were staying in most of 20x years from around 20x years, where the decedent was living in the United States.

마) 김CC은 20xx. x. xx.부터 20xx. x. xx.까지 서울 **구 **동 *** 사업장의 임대사업자로 등록되어 있었고 20xx. x. xx.부터 20xx. x. xx.까지는 ▽▽이라는 상호의 사업장에서 전통차 판매사업을 하였다. 한DD는 20xx년경부터 20xx년 경까지 주식회사 ▼▼의 대표자로 재직하였고, 20xx년경부터 20xx년경까지 주식회사 ▲▲랩에, 2003년 이후에는 ☆☆투자회사에 근무하는 등 국내에서 지속적인 경제활동을 영위하였다.

바) 피상속인은 19xx. x. xx. 서울 ++구 ++동 00 ※※아파트 0동 000호를 취득하여 소유하면서 매년 재산세 등 지방세를 납부하였고, 위 아파트에 대한 재건축사업이 진행되자 조합원의 지위에서 20xx년경 이후부터 부가가치세, 종합부동산세, 종합소득세 등 각종 세금을 납부하였다.

(c) Whether the decedent is regarded as a resident of the United States under the Korea-U.S. Tax Treaty;

The Korea-U.S. Tax Treaty only applies to income tax and corporate tax (Article 1(1)(a). Thus, the above Convention does not apply to the disposition of imposition of inheritance tax of this case. Accordingly, the Plaintiff’s assertion on a different premise is without merit without further review.

4. Whether the disposition of transfer income tax of this case is legitimate

A. Reversion of the owner and capital gains of each real estate of this case

1) The plaintiff's assertion

The plaintiff asserts that since the owner of each real estate of this case was the corporation located in the United States, it does not constitute the inherited property of the deceased, the transfer margin of each real estate of this case does not belong to the plaintiff

2) Determination

A) Article 2(6) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) provides that income attributed to trust property shall be deemed to be attributed to the beneficiary of the trust.

B) The following facts are acknowledged according to the purport of entry of evidence Nos. 14, 15, and 17 and the entire pleadings.

① At the time of the 20xxxx month, there was a stroke for the decedent, and there was a dispute over the property of the decedent between the Plaintiff, his children and de facto spouse, KimCC, and their children. Accordingly, the instant trust was established to maintain the decedent’s overseas property, and each of the instant real estate was reverted to the trust property of the said trust, and the Plaintiff became the sole beneficiary of the said trust.

② 이 사건 각 부동산은 형식적으로 미국 소재 법인(PPP I LLC, PPP II LLC, QQQ LLP)이 소유하고 있기는 하나, 피상속인은 위 법인의 지분을 소유하면서 그 법인을 통해 이 사건 각 부동산을 소유한 것으로서, 이 사건 각 부동산은 실질적으로 피상속인이 소유한 재산이었다. 피상속인 사망 후 원고와 공동상속인들은 피상속인의 상속재산에 대한 분배합의서를 작성하였는데, 위 합의서에는 이 사건 각 부동산을 피상속인의 상속재산으로 하여 그 소유권 분배를 원고를 포함한 공동상속인들의 합의 대상으로 삼는 내용이 포함되어 있었다.

③ Each of the instant real estate was transferred from 20x.x.x.x.x.x.x.x.x.x.x.x.x.x. the entire remainder remaining after deducting liabilities and expenses from the transfer value of the instant apartment was reverted to the property of the instant trust, and thereafter the said money was transferred to another trust with which the Plaintiff is the beneficiary.

C) Comprehensively considering the above facts, each real estate of this case was owned by the original decedent, and its entire portion was reverted to the trust property of this case, and the Plaintiff, as the beneficiary of the instant trust, seems to have reverted to the Plaintiff due to the transfer of each real estate of this case.

B. Whether the acquisition value calculation is lawful

1) The plaintiff's assertion

Article 97 (1) 1 of the former Income Tax Act provides that the acquisition value to be deducted from the transfer value shall be the actual value owned by the acquisition of assets, but where it is impossible to confirm the actual transaction value at the time of acquisition, it shall be determined as the acquisition value.

그런데 피고 ■■세무서장은 이 사건 각 부동산의 재산세 부과내역 중 재산평가가액 또는 주택담보대출금을 기준으로 이 사건 각 부동산의 취득가액을 산정하였는데, 이는 미국 내에서 재산세를 산정하기 위하여 평가된 것으로서 취득 당시 가치를 정확하게 평가하고 있다고 볼 수 없을 뿐더러 그와 같이 산정할 법률상의 근거도 없다.

2) Determination

A) In calculating gains on transfer of assets abroad under Article 118-4 (1) of the former Income Tax Act, the acquisition value that is deducted from necessary expenses shall be the actual transaction value for the acquisition of the assets concerned. If the actual transaction value cannot be confirmed, it shall be based on the market price reflecting the current status at the time of the acquisition of the assets by the country where the assets are located. If it is difficult to calculate the market price, it shall be determined by the Presidential Decree in consideration of the type, size, transaction situation, etc. of the assets. Under Article 178-3 (1) of the former Enforcement Decree of the Income Tax Act, the matters necessary for calculating necessary expenses under paragraph (1) shall be prescribed by the Presidential Decree. Under Article 178-3 (2) of the former Enforcement Decree of the Income Tax Act, where the market price of assets abroad is calculated, it shall be the market price

나) 을 18, 19호증의 기재 및 변론 전체의 취지에 의하면, 피고 ■■세무서장은 피상속인이 사망한 20xx. x. xx.을 기준으로 미국에서 20xx년 피상속인에게 부과된 재산세 부과처분 내역을 토대로 이 사건 각 부동산의 취득가액을 다음과 같이 평가하였다.

① PPP I LLC, QQQ LLP : 원고에게 부과된 2008년 재산세 부과내역 중 해당 부동산평가액

(2) PPII LLC: The amount of the final cost settlement for housing mortgage loans prepared at the time of the transfer of an apartment.

C) (2) The assessed value of paragraph (1) of the above B constitutes the assessed value made by the government of the United States of America with respect to taxation on the decedents. The assessed value of paragraph (2) is deemed to exceed the assessed value of the pertinent real estate at the time of imposing property tax, and thus, the said assessed amount is deemed to be the acquisition value of the instant real estate loan in favor of the taxpayer. Since the Plaintiff did not submit any data to verify the actual transaction value of each of the instant real estate, the acquisition value of each of the instant real estate calculated as above is lawful, based on Article 118-4 of the Income Tax Act and Article 178-3

D) Therefore, the Plaintiff’s assertion on this part is without merit.

C. Whether profits earned by the Plaintiff constitute dividend income

1) The plaintiff's assertion

Since this case’s trust is clear that it is a trust established overseas, even if its requirements are not met pursuant to Article 23(2) of the former Enforcement Decree of the Income Tax Act, it constitutes a collective investment scheme under the Enforcement Decree of the Income Tax Act. The Plaintiff’s profit from this case’s trust constitutes a dividend income, which is a collective investment scheme’s profit received overseas from Article 17(1)5 of the former Income Tax Act, and as prescribed by the Presidential Decree, it constitutes a dividend income.

2) Interpretation and determination of relevant provisions

A) Article 17 of the former Income Tax Act provides that profits from collective investment schemes that are received at home or abroad shall be dividend income, and Article 23(2) of the former Enforcement Decree of the Income Tax Act provides that a trust established overseas shall be deemed a collective investment scheme pursuant to Article 23(1) of the Enforcement Decree, even if it does not meet the requirements under each subparagraph of Article 23(1) of the Enforcement Decree.

B) However, the amendment history of the relevant laws and regulations surrounding the taxation on the profits of the trust is as follows, and such history and purpose should be reflected in the interpretation of Article 23(2) of the former Enforcement Decree of the Income Tax Act.

① Prior to the amendment by Act No. 7006 of December 30, 2003, the Income Tax Act separates domestic trust as a trust and a securities investment trust, and imposes a tax on the income accrued therefrom as interest income and dividend income, while the income accrued from the trust abroad was all imposed as interest income.

② However, as amended on December 30, 2003, the Income Tax Act, in principle, provides that all trust profits shall be imposed by classifying them by the content of income generated from the property rights transferred or disposed of to the trustee, but only the interests of investment trust shall be imposed as interest income and dividend income as before. After that, the Income Tax Act was amended by Act No. 8144 on December 30, 2006 and imposed as interest income, deeming the interests of a specific investment trust taxable as dividend income. After that, as the Income Tax Act (amended by Act No. 9270 on December 26, 2008) was amended by Act No. 9270 on December 26, 2008, the "investment trust prescribed by the Income Tax Act" was revised into the "collective investment scheme en bloc". The object of dividend income is limited to the interests of collective investment schemes that receive domestic or foreign sources, but the specific scope was delegated to the Presidential Decree.

③ Article 26-2(2) of the Enforcement Decree of the Income Tax Act, amended by Presidential Decree No. 24356 on February 15, 2013, amended by Presidential Decree No. 24356, amended the scope of collective investment schemes to “collective investment schemes established overseas” and made clear the meaning thereof.

C) In full view of the history and purport of the amendment of the former Income Tax Act that limits the scope of such application to investment trust's profit or a "profit of collective investment scheme" when imposing a tax on the property right that was transferred or disposed of to the trustee by classifying it as a "dividend income", it is reasonable to interpret it to be "a trust established overseas" rather than "any trust established overseas" under Article 23 (2) of the former Enforcement Decree of the Income Tax Act, which meets the substantial requirements of the collective investment scheme, but fails to meet the formal requirements under domestic law because it fails to be established domestically."

D) However, the term “collective investment scheme” under the former Financial Investment Services and Capital Markets Act (amended by Act No. 10063, Mar. 12, 2010) is an organization for collective investment. The term “collective investment scheme” is to manage the money, etc. collected by inviting two or more persons to make investment recommendations by means of acquisition, disposal, and other methods, and distribute the result to vest in investors or fund management entities without receiving management instructions from investors (Articles 6 and 9(18) of the former Financial Investment Services and Capital Markets Act). The instant trust is established to maintain and manage an inheritee’s overseas property until a dispute over the property of the inheritee arises, and the Plaintiff constitutes the only beneficiary, and thus, it cannot be deemed that it satisfies the substantive requirements of “collective investment scheme” under the former Financial Investment Services and Capital Markets Act.

E) This part of the Plaintiff’s assertion is without merit.

5. Conclusion

The plaintiff's claim against the defendants is dismissed in entirety as it is without merit. It is so decided as per Disposition.