Where inheritance commences due to adjudication of disappearance after an administrator of an absentee disposes of his/her property without permission of a court, the method of determining the taxable value.

An absentee’s property is null and void of a disposition by an administrator without permission of a court. Since the effect of mediation of an invalid disposition does not extend to an absentee who is not a party to the lawsuit, it shall be deemed that there is no change after the invalid disposition and mediation, and thus, the taxable value of inherited property shall be determined based on the date on which

The contents of the decision shall be the same as attached.

Article 1 (Inheritance Tax Taxables)

Article 13 (Taxable Amount of Inheritance Tax and Gift Tax)

1. All of the plaintiffs' primary claims and the conjunctive claims seeking revocation of the disposition of inheritance tax belonging to 2002 dated October 1, 2007 are dismissed.

2. All of the conjunctive claims seeking revocation of the imposition of inheritance tax for the year 2002, May 3, 2007, among the instant lawsuits, shall be dismissed.

3. All the costs of lawsuit are assessed against the Plaintiffs.

The primary purport of the claim is to revoke the imposition of KRW 44,347,140, respectively, imposed by the defendant against the plaintiff's citizen's book, KRW 885,612,398, which was imposed by the defendant against the plaintiff's citizen's book on October 1, 2007, KRW 3,258,627,892, and KRW 44,347,140, which was imposed by the defendant against the plaintiff's citizen's book.

Preliminary purport of claim: The imposition of KRW 42,572,087 imposed by the Defendant on the order of the Plaintiff’s citizen, KRW 850,164,580 imposed by the Defendant on May 3, 2002, KRW 3,128,196,96, and KRW 42,572,087 imposed on the Plaintiff’s citizen’s tax, KRW 35,47,819, imposed on the Plaintiff’s citizen’s tax, KRW 130,430,932, and KRW 1,75,053 imposed on the Plaintiff’s resident’s tax, KRW 45,47,819, and KRW 130,430,932 imposed on the Plaintiff’s citizen’s tax, KRW 1,75,053, respectively, shall be revoked.

1. Facts of recognition;

(1) On October 28, 193, 193, ○○ Partnership (hereinafter “○○ Partnership”) was established for the purpose of real estate sale and lease business, etc. The employees of the instant company were public-private partnership prior to January 28, 1984, including ○○, ○○ (the first denial of civil-private partnership), ○○ (the second denial of civil-private partnership), ○○ (the first children of civil-private partnership), ○○ (the second children of civil-private registry), ○○ (the second children of civil-private registry), ○○○ (the second children of civil-private registry), and ○○ (the children of civil-private registry).

(2) Subsequent to the partial change of the members of the instant company, the members of the instant company held with respect to the instant company prior to February 28, 1985 (the ratio rounded off to the third decimal place; hereinafter the same shall apply) are as follows.

(3) In order to manage the ○-type property, the absence that was missing at the time of the Korean War was selected and appointed as an administrator of ○-type absentee civil petition from August 4, 1959 to April 3, 2001; from July 8, 2001 to February 3, 2002; from February 4, 2002, from February 4, 2002 to August 7, 2002, the Yellow Day was appointed as an administrator of ○-type civil petition. On the other hand, the ○-type civil petition was established between the ○○ and the Plaintiff, who was a child, and the Plaintiff ○-ju and the ○○-type civil petition between Kim○-type and his ○-type.

(4) On June 30, 1999 with respect to the instant company, on February 28, 1985, 33.68% (168.34,900 won) out of 67.49% of the shares of the company to ○○○ on February 28, 1985, and on February 28, 1985, the registration of alteration of shares was made to ○○○○○○○○○○○○○○○○○○○ on February 28, 1985 (hereinafter referred to as the “transfer of shares of this case”). As a result, the shares of the employees of the instant company were 33.81% (169,094,84 won, 33,815 won), 16.19% (80,986 won, 16, 185 won, 200, 509 won, 509, 5010 shares of the shares of this case.

(5) On April 1, 200, the instant company held a temporary general meeting of employees on April 1, 200, and (i) the 39,418,932 company invested 10,000 won in the instant company. The 39,418,932 company was to dispose of the surplus of the instant company (at that time, the instant company was allotted 2,000 shares of investment; hereinafter referred to as "the instant capital increase"); (ii) the 06,565,018 won was to be paid to the 318,93,341 won as share refund; and (iii) the company was to retire from the instant company (at that time, the instant company decreased the 50,000 shares held by 0,000 shares of ○○ and 00 shares of investment shares; (iv) the 50,000 shares of the instant company’s shares were to be retired from the 50,000 shares of investment shares of each of the instant company.

(6) After doing so, on October 18, 2001, the Seoul Central District Court 2001Da63709 decided October 18, 2001 filed a lawsuit against the instant company, etc. for the confirmation of invalidity of the transfer of equity on the ground that “the change of equity interest in the instant company made on February 28, 1985 as above was null and void since ○○ et al. did not consent from the said Plaintiffs,” and the conciliation of the following (hereinafter “instant conciliation”) was established on December 23, 2003.

① On February 28, 1985, the part transferred in excess of 112,765,073 won out of his/her share is confirmed as null and void from among the act of transferring all his/her share to the ○○○○○○ and ○○○○○ and the transfer of his/her share in excess of 168,335,000 won out of his/her share.

② On February 28, 1985, the instant company: (a) transferred the shares amounting to KRW 168,335,000 out of its own shares to Ukhee on June 28, 1985; (b) transferred the shares in excess of KRW 112,765,073 out of the registration as of June 30, 199; and (c) transferred the shares in excess of KRW 112,765,073 among the registrations as of February 30, 199.

③ Of the shares equivalent to KRW 55,569,927, the share of KRW 29,572,304, among the shares of KRW 55,569,927, the share of KRW 25,997,623, is agreed to vest in the order of ○○○, respectively, to vest in the country of ○○. The company of this case shall carry out the registration procedure that the country of ○○ was newly incorporated in the company of

(7) According to the conciliation of this case, KRW 50,00,00 for the total amount of KRW 224,664,81 [=37,429,784 - ( KRW 168,334,90 - 55,569,927)] of the Civil Code 59,970,105 won, the Civil Code 14,450,083 won, the Civil Code 80,924,986 won, the Civil Code 80,990,015 won [the amount of KRW 7,225,04, 90, 500 - 5,9279), the amount of KRW 95,9750,97, the amount of capital increase and KRW 1450,925,9750, the amount of capital increase and KRW 2945,9750,965,975,095, the amount of capital increase and KRW 2945,945,7,0945,

(8) The administrator of the absentee did not obtain the permission of the court pursuant to Article 25 of the Civil Act at the time of the instant conciliation.

(9) On August 7, 2002, the Plaintiffs reported and paid inheritance tax amounting to KRW 1,483,571,000 on the grounds of the adjudication of disappearance on August 7, 2002, and KRW 987,571,00 on the tax base. The Defendant, on May 2, 2007, deemed the failure to report 21.37% of the shares held by the company of this case in the private-public-private partnership upon the instant mediation, added the assessed shares to inherited property KRW 6,043,367,616 to KRW 6,00,00, KRW 306,729,875, and KRW 1,272,708, KRW 308, KRW 381,380, KRW 481, KRW 581, KRW 486, KRW 581, KRW 700 on the inheritance tax of this case to the Plaintiff’s private-private partnership order.

(10) On June 30, 2007, the plaintiffs appealed against the first disposition of this case and filed an appeal with the National Tax Tribunal under the National Tax Tribunal Nos. 2007 and 2441. However, the National Tax Tribunal dismissed all the plaintiffs' appeals on September 17, 2007.

(11) On October 1, 2007, the Defendant reduced the amount of tax credit from 767,726,267 to 394,429,30 won. The Defendant imposed the amount of tax credit from 164,296,429 won for 202, for the inheritance tax for 2002, 66,528,371 won for the Plaintiff’s citizen’s book, 24,792,425 won for the Plaintiff’s citizen’s book, and 3,31,415 won for the Plaintiff’s citizen’s book and 3,31,415 won for each of the above dispositions [the Defendant calculated the amount of tax credit from 767,726,267 won to 39,429,300 won for the Plaintiff’s citizen’s book and 205 won for 305,000 won for the first 205,000 won for the inheritance tax base.

[Grounds for Recognition] Facts without dispute, Gap 1-9, 13, Eul 1-16, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

(1) The effect of the conciliation is only between the parties to the conciliation, and it does not affect the Defendant, who is the tax authority, and thus, the instant disposition was unlawful on the premise that the shares of KRW 55,569,927 transferred to ○○○○○ was left in common sense.

(2) 조정은 창설적 효력을 가지는 것이고, 비록 2003. 12. 23. 이루어진 이 사건 조정에 "원고 민○서ㆍ민○순이 1985. 2. 28. 유○희에게 자신들의 지분 전부를 각 양도한 행위는 무효임을 확인한다"는 내용이 포함되어 있다 하더라도, 이 사건 조정에 으히ㅏ여 위와 같은 지분양도가 1985. 2. 28.부터 무효임이 확인되는 것이 아니라 이 사건 조정의 성립 당시에 비로소 원고 민○서ㆍ민○순의 위 지분양도가 무효로 되는 법률관계가 창설되는 것이다. 따라서 원고 민○서ㆍ민○순은 이 사건 조정의 성립 당시인 2003. 12. 23.부터 이 사건 회사의 사원 지위를 보유하게 되는 것이고 이에 따라 위 원고들에게 증여의제를 할 수 없음에도, 이와 달리 위 원고들이 민○식이 이 사건 회사를 퇴사한 2000. 4. 10. 이 사건 회사의 사원 지위를 보유하고 있었고 민○식이 퇴사 당시 지급받은 지분환급금이 출자지분에 미치지 못한다고 하여, 위 원고들에게 그 지분율에 상당하는 이익을 증여한 것으로 보고(증여가액 1,303,388,188원), 위 증여가액을 상속재산의 가액에 포함한 피고의 이 사건 처분은 위법하다.

(3) In accordance with Article 28 of the Civil Act, the civil recognition shall be deemed to have died upon the expiration of the period of disappearance. Thus, the starting point of inheritance shall be July 4, 1955, and the assessment of shares subject to inheritance tax shall be based on the market price based on the commencement date of inheritance above. However, it is unlawful to assess the value of the above shares based on August 7, 2002, which was declared missing.

(4) The Defendant assessed a share value of 453,00 won per share by using a supplementary evaluation method with respect to the shares of ○○-type, but when it assumed that the instant company continues to operate the business, the net profit and loss value, which is the value of returning net profit per share to the capital, shall be KRW 15,880, and the market value of shares and refund money as of April 1, 200, which reflects an adequate objective exchange value, shall be recognized as the normal transaction price, and the shares of 5,000 won per share of ○-type Kim○-type shall be also recognized as the market price. However, the instant disposition should be revoked due to the assessment of the value of the unlisted shares based on an administrative convenience method, which does not consider the transaction reality of the unlisted shares.

(5) It is unlawful that the Defendant imposed the total amount of inheritance tax on the Plaintiff’s private sector and private sector alone, without distinguishing and specifying the amount of tax that the Defendant has to pay individually to the Plaintiffs.

(6) At the time of the declaration of disappearance, there were special circumstances in which the Plaintiffs were not able to report and pay the non-listed shares owned by the public-private partnership Type 0 at the time of the declaration of disappearance. Accordingly, the Plaintiffs’ justifiable grounds for not imposing additional tax exist, and thus, the part of imposing additional tax on the Defendant’

B. Relevant statutes

Article 1 (Inheritance Tax Taxables)

Article 13 (Taxable Amount of Inheritance Tax and Gift Tax)

Article 60 (Principles, etc. of Appraisal)

Article 63 (Appraisal of Securities, etc.)

Article 39 (Presumption of Donation at Time of Capital Increase or Capital Reduction)

Article 28 (Calculation Method, etc. of Corporations and Benefits Deemed Donation at Time of Merger)

Article 29 (Calculation Method, etc. of Value Deemed Donation upon Capital Increase or Capital Reduction)

Article 54 (Appraisal of Unlisted Stocks)

Article 55 (Method of Calculating Net Amount)

Article 56 of Enforcement Decree of the Inheritance Tax and Gift Tax Act (Calculation of Net Profit and Loss for the latest three years per share)

Article 22 (Management of Property of Absentee)

Article 24 (Duties of Administrator of Civil Act)

Article 25 (Authority of Administrator of Civil Act)

Article 118 (Scope of Power of Representation)

Article 28 (Formation of Conciliation of Civil Disputes)

Article 29 (Effect of Conciliation of Civil Disputes)

Article 220 (Effect of Protocol of Compromise or of Waiver or Recognition of Claims)

C. Determination on this safety defense

(1) The defendant asserts that since the plaintiffs did not go through the procedure of the previous trial on the second disposition of this case, the part seeking revocation of the second disposition of this case in the case where the premise of the absorption theory is based on the main claim and the existence theory of the lawsuit of this case is all unlawful.

However, in a case where a revised disposition is made after a tax disposition was issued, the initial tax disposition loses its independent existence value by absorbing the revised disposition, and thus, it should be determined based on the revised disposition. However, in a case where the grounds for illegality are common and legitimate pre-trial procedures are followed with respect to the initial tax disposition, a taxpayer may institute an administrative litigation seeking revocation without going through the pre-trial procedure (see Supreme Court Decision 98Du18510, Sept. 22, 2000).

In this case, the plaintiffs filed an appeal against the first disposition of this case on the ground that the shares in KRW 5,569,927, which was confirmed as null and void by the mediation of this case, were not shares in the private sector since February 28, 1985. The defendant reduced the amount of gift tax credit from KRW 767,726,267 to KRW 394,429,300, and deducted the amount of gift tax credit from KRW 164,296,429,429, which was deemed null and void by the mediation of this case, and the plaintiffs did not dispute the above grounds for increase.

Therefore, the plaintiffs' assertion of the grounds for illegality of the first and second dispositions of this case is related to the validity of the mediation of this case, and as long as the plaintiffs have gone through the first instance procedure on the first disposition, the plaintiffs can file an administrative lawsuit seeking revocation of the second disposition without going through the second instance procedure. Thus, the defendant's main defense of safety cannot be accepted.

(2) Where a corrective disposition is taken to increase the tax base and amount of tax, the corrective disposition is not a disposition to determine the tax base and amount of tax in the initial disposition, and only the portion exceeding the tax base and amount of tax in the initial disposition is not a disposition to determine the additional tax base and amount of tax, according to the result of the reinvestigation identified, and determine the tax base and amount of tax in the initial disposition as a whole. As such, if the corrective disposition is taken to correct the tax base and amount of tax, the initial disposition first becomes extinct as a matter of course by absorbing it into the corrective disposition, and only the corrective disposition is a subject of litigation (see

Among the instant lawsuits, the part concerning the conjunctive claim seeking revocation of the first disposition is unlawful as it is intended to seek revocation of the extinguished disposition by absorbing the second disposition of this case.

D. Determination on the merits

(1) An administrator of an absentee may, under Article 118 of the Civil Act, maintain the current state of property, namely, the act of preserving the property to the extent that it does not change the nature of the property or the right, use the property or improve the economic value of the property to the extent that it does not change the nature of the property or the right (Article 25 of the Civil Act). Whether to approve an act of using or improving the property without changing the nature of the property or the right or not must be determined in light of social norms (see Supreme Court Decision 79Da2162, Nov. 11, 1980). The permission of an administrator of a court to excess the authority to an administrator is a kind of authorized act, and the administrator is entitled to do a juristic act for an absentee on this basis. Thus, if the administrator does not do so without permission of the court, it shall not take effect against

In light of the fact that the transfer of shares in this case is a disposal act that reduces the civilian's property and does not constitute preservation or improvement (see, e.g., Supreme Court Decisions 69Da1820, Jan. 27, 1970; 94Da39130, Apr. 26, 1996; 94Da39130, Apr. 26, 1996). While the capital increase in this case increases the company's property, it constitutes a disposal act because the shares in the private sector are reduced or partially transferred, and the capital increase in this case constitutes a disposal act as it transfers the whole shares in the private sector. In light of the fact that the private sector's custodian transfers the shares in this case without the court's permission, the transfer of shares in this case, capital increase, and capital decrease are all null and void. In addition, since the effect of the conciliation does not extend to the private sector's public interest, but the time when the conciliation is established after the formation of the tax obligation in this case.

As above, if 67.49% of the shares of the private-use consciousness as of August 7, 2002, which is the date of adjudication of disappearance (i.e., the addition, etc. to the taxable value of inherited property under the premise that the change in the above shares is valid), the reasonable amount of inheritance tax to be paid by the plaintiffs is as shown in the attached Form. If the above amount exceeds the respective tax amount imposed by the defendant against the plaintiffs in this case, the disposition of this case is legitimate as a result, and the plaintiffs' assertion on the different premise is without merit.

(2) Article 1(1) of the Inheritance Tax and Gift Tax Act provides that the taxable amount of inheritance taxes shall be calculated on the basis of the date of adjudication of disappearance in cases where inheritance commences due to adjudication of disappearance. Therefore, the Plaintiffs’ assertion that the period of disappearance expires is without merit.

(3) Pursuant to Articles 60 and 63 of the Inheritance Tax and Gift Tax Act and Articles 49, 54, 55, and 56 of the Enforcement Decree of the same Act, the Defendant assessed the weighted average net profit and loss amount and the net asset value per share of the instant company for the last three years per share of the instant company, and calculated the value per share of the instant equity based on the larger amount. The Defendant’s calculation method is lawful based on the relevant statute, and the Plaintiffs’ assertion that caused such error is difficult to accept.

(4) According to the statements in Section B 11-16 (including paper numbers) and the testimony of ○○○ Cooperative witness, the Defendant issued the instant disposition by using the National Tax Computer Network; the Defendant printed out the inheritance tax notice by means of the aforementioned computer network; the “detailed statement of calculation of the inheritance tax base and the amount of tax; and the list of co-inheritors paid by inheritor and co-inheritors; and the Defendant can recognize the fact that the notice was sent to the Plaintiffs by registered mail.

Therefore, the defendant should be deemed to have made the disposition of this case by distinguishing and specifying the amount of tax to be individually paid to the plaintiffs. Therefore, the other plaintiffs' assertion is not accepted.

(5) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed under the conditions as prescribed by individual tax law in cases where a taxpayer violates various duties, such as a return and tax payment, without justifiable grounds, and the taxpayer’s intent or negligence is not considered. On the other hand, such a sanction cannot be imposed in cases where a taxpayer has justifiable grounds, such as where there are circumstances where it is reasonable to present it, or where it is unreasonable for the taxpayer to expect the performance of his/her duties to do so, or where it is unreasonable for him/her to do so (see, e.g., Supreme Court Decision 2003Du13632, Jan. 27, 2005).

According to the aforementioned evidence and the purport of the entire pleadings, Plaintiff ○ filed a petition with the Seoul Family Court for adjudication of disappearance on September 2001, 2001, and Plaintiff ○○○ and ○○○○, as the guarantor, signed and sealed the said request as the guarantor. Plaintiff ○○ and ○○○, as the guarantor, filed a lawsuit with the Seoul District Court on October 18, 2001 to seek confirmation of invalidity of a share transfer, etc., and filed a lawsuit on January 28, 2003 with Plaintiff ○, ○○, Civil Service, Civil Service, and ○○, etc. as the Defendant on January 28, 2003.

However, Article 65(1) of the Inheritance Tax and Gift Tax Act and Article 60 of the Enforcement Decree of the same Act stipulate the method of evaluation on the premise that the rights during a lawsuit are also included in inherited property. Thus, if the plaintiffs filed a lawsuit seeking confirmation of invalidity of transfer of shares at the time of filing an inheritance tax return or filed a claim for confirmation of invalidity of transfer of shares, etc., the above transfer should be reported as inherited property. Thus, the reasons why the above rights have not been confirmed at the time of filing an inheritance tax return cannot be deemed as having justifiable reasons for filing a non-report (see Supreme Court Decision 2004Du3625, Aug. 24, 20

3. Conclusion

Therefore, the plaintiffs' primary claims and the conjunctive claims seeking revocation of the disposition of imposition of inheritance tax belonging to the year 2002 on October 1, 2007 are all dismissed as they are without merit. The part of the conjunctive claims seeking revocation of the disposition of imposition of inheritance tax belonging to the year 2002 among the lawsuits of this case is unlawful, and thus it is so decided as per Disposition.