Cho High Court Decision 2010Du3087 ( December 01, 2010)

The taxable value of inherited property includes donated property to the spouse.

The inclusion of a spouse's donated property in the taxable value of inherited property cannot be deemed to contravene the purpose of legislation under Article 53 of the Inheritance Tax Act, and the spouse's deductible system of gift tax is not to be unreasonable because it is added to the taxable value of inherited property.

2011Guhap7007 Revocation of Disposition of Levying Inheritance Tax

KimA

○ Head of tax office

June 1, 201

June 29, 2011

1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The imposition of KRW 28,370,400 on June 1, 2010 by the Defendant against the Plaintiff (Appointed; hereinafter referred to as the “Plaintiff”) and the Appointed shall be revoked.

1. Details of the disposition;

A. On October 25, 2004, the deceased KimB (hereinafter referred to as the “the deceased”) leased the rent deposit of KRW 250 million to the gas station located on the ○○○○○○○-dong, 1077-3, and one parcel (hereinafter referred to as the “gas station of this case”).

B. On May 30, 2005, the Plaintiff, who was the deceased, received 1/2 copies of the gas station of this case from the deceased and 146,146,000 won in cash, etc., and accepted 1/2,500,000 won out of the obligation to refund the rental deposit of this case (hereinafter “donations as of May 30, 2005”), and on August 30, 2005, reported and paid KRW 146,146,228 won in gift tax to the Defendant.

C. On February 24, 2006, the deceased reported and paid KRW 68,67,000 of inheritance tax to the Defendant on August 23, 2006 with the value of the inherited property as KRW 2,919,497,00 on August 23, 2006, which is the wife of the deceased, who jointly inherited the deceased’s property.

D. As a result of the Defendant’s investigation on the deceased’s inherited property, it was found that, on October 28, 2004, the amount of KRW 250 million was deposited in the passbook in the name of the deceased on October 29, 2004 at the bank in the name of the head of Korea bank in the name of the deceased, the sum of KRW 40 million was deposited in the passbook in each of the passbook in the name of the Plaintiff, the Appointer KimA, and the Non-CC established on the same day on the same day, and KRW 10 million was deposited in the passbook in the bank in the name of the Appointer KimA, and KRW 30 million was deposited in the passbook in the bank in the name of the Korean bank in the name of the head of Korea under the name of Korea under the name of the

E. As of October 29, 2004, the Defendant donated money to each passbook under the name of the residentCC, the Plaintiff, and the Selection KimA (the sum of KRW 18,62,400,000 deposited in the passbook under the name of the CC was excluded from temporary fund management of the deceased). On May 1, 2008, the Defendant notified the 22,00,000 won deposited in the passbook under their names as of August 23, 2006 by adding the aggregate of KRW 30,000 to the taxable value of the inheritance tax reported as of August 23, 2006, and notified the correction and correction of KRW 49,207,150,000,000 won deposited in the passbook under the name of 30,000,000 won, and 18,64,000,000 won, and 205,015,000,000 won,00.

F. In imposing inheritance tax on May 1, 2008, the Defendant did not notify “the inheritance tax and the list of persons jointly and severally liable for payment to each heir or testamentary donee” on the ground that the Defendant did not notify “the inheritance tax and the list of persons jointly and severally liable for payment to each heir or testamentary donee.” In addition, on August 3, 2009, revoked the imposition of inheritance tax as of May 1, 2008 on the CivilCC, the Plaintiff and the designated parties KimA, and imposed inheritance tax of KRW 35,242,192 on the designated parties, inheritance tax of KRW 6,679,149, and inheritance tax of KRW 7,285,815 on the CivilCC, respectively.

G. At that time, the Plaintiff and the Selected Kim Jong-soo filed a lawsuit seeking the cancellation of gift tax of KRW 34,421,90 + 1,55,200 + KRW 14,200 + 14,200 + KRW 14,204,30 on September 3, 2009 (hereinafter referred to as the “instant lawsuit seeking cancellation of gift tax”) against the Defendant as ○○ Administrative Court No. 2009, 709,000 won against the Defendant, and thus, 4,000,000 won out of KRW 1,421,90 on May 1, 208, 208, and 200,000 won against the Plaintiff and 2,000 won on the ground that each of the above 2,000,000 won was under the name of the Plaintiff and 2,000 won on the ground that each of the above 2,500,000 won deposit deposit account was revoked.

H. On June 1, 2010, the Defendant revoked the imposition, notice, correction, and disposition of gift tax as of May 1, 2010, and revoked the imposition, notice, correction, and disposition of gift tax as of May 1, 2008, and subsequently denied the deduction of the amount of KRW 24 million, which was deducted from the amount of inheritance tax calculated on the ground that the total amount of KRW 220,000,00,00, out of the instant rental deposit, was deemed to have been donated in advance to civilCC (hereinafter “instant disposition”). The Defendant corrected and notified the Plaintiff and the Selection KimA of the amount of KRW 28,370,40,00 (the amount of tax payable by the Plaintiff, KRW 20,318,880,880, the amount of tax payable by the Plaintiff, KRW 3849,863, and KRW 4,201,657).

I. On September 8, 2010, the Plaintiff and the Appointed KimA requested the Tax Tribunal for the instant disposition, but it was dismissed on December 1, 2010.

[Grounds for Recognition: The absence of dispute, Gap evidence Nos. 1, 3, 5, Gap evidence Nos. 2 and 4-1, 2, Eul evidence No. 1-1, 2, Eul evidence No. 2, and the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition should be revoked as it is unlawful.

1) Article 53 of the Inheritance Tax Act provides that, in order to allow the free transfer of property between the spouse and the spouse without any tax burden, if a donation is received from the spouse, the amount of KRW 600 million shall be deducted from the taxable value of the gift tax, but it goes against the legislative intent of Article 53 of the Inheritance Tax Act to include the above KRW 220 million in the taxable value for the instant disposition.

2) The obligation to return the instant lease deposit amounting to KRW 250 million, which is an inheritance obligation, is not only the inheritance obligation of the deceased, but also the civilCC, after the deceased’s death, must be deducted from the taxable value for the instant disposition.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) As to the first argument

A) In the case of inheritance tax, the duty to pay taxes arises due to an incidental circumstance of the death of an inheritee. As such, whether or not the inheritance of an inherited property is possible or not, and the value of the inherited property cannot be arbitrarily selected by an ancestor. In addition, the Act provides for an heir who is a beneficiary and its priority, inheritance tax amount, etc. One time to pay taxes to an ancestor; on the other hand, whether or not the gift tax is donated or the value of the donated property may be freely selected by a donor; on the other hand, the donor may freely choose a donor because there is no increase in the capital; and on the other hand, the inheritance tax and gift tax may be freely selected by a donor several times at each time of donation (see, e.g., Constitutional Court en banc Decision 2007Hun-Ba13, Jul. 31, 2008). In particular, deducting the gift tax amount in advance from the taxable value of inherited property should be added to the taxable value of the inherited property; thus, it is necessary to strictly interpret the principle of no taxation without the principle of no taxation without law and no taxation without law.

B) On the other hand, Article 53 of the Inheritance Tax Act provides that the taxable value of inherited property shall be the amount calculated by adding the value of property donated by an ancestor to an heir within 10 years before the date inheritance commences, after deducting the debts, etc. under Article 14 from the value of inherited property. On the other hand, where the donated property is received from the spouse, up to 600 million won shall be deducted from the taxable value of donated property. However, as seen earlier, there is no exception in the Inheritance Tax Act, and there is no substantial difference in the cause or time of the inheritance and gift tax, and there is no conclusion that the inheritance tax and gift tax are exempt from inheritance tax pursuant to Article 53 of the Inheritance Tax Act, which differs in the legislative intent of Article 13 of the Inheritance Tax Act. Thus, it cannot be deemed that the inclusion of donated property to the spouse in the taxable value of inherited property stipulated under Article 13 of the Inheritance Tax Act is in violation of the legislative purpose of Article 53 of the Inheritance Tax Act. In particular, even if the spouse’s deduction system under the Inheritance Tax Act provides for life benefits and contributions to the spouse’s common property within 10 years.

2) As to the second argument

Comprehensively taking account of the overall purport of the arguments in Gap evidence 6-1 through 3, it may be acknowledged that the CivilCC paid KRW 250 million to △△△ Co., Ltd. on October 30, 2009 and November 10, 2009. However, since the plaintiff took over the obligation to refund KRW 125 million from the deceased on May 30, 2005, among the obligation to refund the deposit deposit of this case, the inheritance obligation out of the obligation to return the deposit of this case is only KRW 125 million. The defendant, on May 1, 2008, deducted the above KRW 125 million from the taxable value of inheritance tax at the time of correcting and notifying the amount of KRW 49,207,150,000 from the inheritance tax at the time of correcting and notifying the amount of KRW 125,00,000,000,000,000 as seen earlier, the plaintiff's assertion is without merit.

3. Conclusion

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