(a) Whether Article 9 (4) of the Inheritance Tax Act shall apply where the maximum amount of claims secured by the right to collateral security is remarkably higher than the current status at the time of commencing the inheritance;

(b) Criteria for housing subject to a housing inheritance deduction;

C. Effect of taxation that is not specified by inheritor as to co-inheritors

(d) The time when the materials can be submitted to determine whether the taxation disposition is unlawful

A. According to Article 9(1) and (4)1 of the Inheritance Tax Act, and Article 5-2 subparag. 3 of the Enforcement Decree of the same Act, where a right to collateral security has been established on inherited property, the value of the inherited property must be the larger of the value based on the current status at the time of the commencement of the inheritance and the maximum amount of the claim secured by the property concerned, compared with the value based on the current status at the time of the commencement of the inheritance. The maximum amount of the claim secured by the right to collateral security is obviously higher than the value based on the current status at the time of the commencement of the inheritance and thus, the application of Article 9(4)

B. Whether a house is subject to a housing inheritance deduction under the provisions of Article 11-2 of the Inheritance Tax Act shall not be determined by whether it is registered as a house on the public register, but by whether it is actually being used as a residential building.

C. In imposing a tax on co-inheritors, without specifying the particulars of each tax amount and calculation thereof by co-inheritors, only three persons outside the OOO and notified the entire tax amount to the same taxpayer. As such, this taxation is unlawful on the grounds that the three persons in relation to the remaining three persons are not known, and the details of calculation thereof are not revealed.

D. In the above case, the tax authority revoked the instant tax disposition by itself after the judgment of the court below and notified each co-inheritors of the name of each co-inheritors and the amount of tax according to their shares in inheritance and the grounds for the calculation thereof clearly, even if the illegality of the said tax disposition can be determined at the latest by the materials submitted before the closing of arguments at the fact-finding court. Thus, the above circumstances do not affect the judgment below that the instant

(a) Article 9(1) of the Inheritance Tax Act, Article 9(4)1 of the Inheritance Tax Act, Article 5-2 subparag. 3(b) of the Enforcement Decree of the Inheritance Tax Act, Article 11-2(c) of the Inheritance Tax Act, Article 26 of the Administrative Litigation Act;

C. Supreme Court Decision 85Nu962 delivered on February 25, 1986, 86Nu415 delivered on February 24, 1987, Supreme Court Decision 84Nu106 delivered on September 25, 1984, Supreme Court Decision 85Nu922 delivered on July 8, 1986

Plaintiff 1 and 3 others, Counsel for the defendant-appellant-appellee and four others

Head of Dong Tax Office

Seoul High Court Decision 84Gu1226 delivered on July 9, 1986

The part of the lower judgment against the Defendant against the Plaintiff 1 shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The defendant's appeal against the remaining plaintiffs is dismissed.

The costs of appeal to the Supreme Court are assessed against the defendant.

1. We examine the grounds of appeal against the plaintiff 1.

(1) As to the ground of appeal No. 1

According to Article 9(1) and (4)1 of the Inheritance Tax Act and Article 5-2 subparag. 3 of the Enforcement Decree of the same Act, in principle, the value of inherited property shall be based on the current status at the time of commencement of inheritance, but with respect to property, the maximum amount of claims secured by the relevant property and the value based on the current status at the time of commencement of inheritance, whichever is larger, shall be the value of the property at the time of commencement of inheritance. This can be deemed to be determined within the scope of the ordinary maximum amount of claims where a right to collateral security is established with respect to real property, and even where a right to collateral security has been established to secure a debt higher than the actual value of the real property, making only the actual value of the real property as an inherited property is more likely to evade inheritance after being deducted from the taxable amount of inheritance taxes.

Therefore, in case where a right to collateral security has been established on inherited property, the value of the inherited property must be calculated by comparing the value according to the current status at the time of commencement of the inheritance with the maximum amount of the claim secured by the property, and because the maximum amount of the secured claim secured by the right to collateral is remarkably higher than the value according to the current status at the time of commencement of the inheritance, it can not be limited to the value of the inherited property according to the current status at the time of commencement of the inheritance.

However, according to the reasoning of the judgment below, the court below determined that among the inherited property in this case, the ( Address 1 omitted) site and the above ground buildings have been registered to establish a mortgage with the maximum debt amount of KRW 250,00,000 as of November 20, 1982, but at that time, the market price of the above real estate at the time of the commencement of the inheritance does not exceed KRW 87,115,300 in total, but did not have determined the maximum amount of the secured claim based on the accurate market price at the time of the commencement of the inheritance, the above real estate price shall be KRW 87,115,300 in total, which is the market price at the time of the commencement of the inheritance, notwithstanding the provisions of Article 9(4) of the Inheritance Tax Act, the above judgment of the court below is erroneous in the misapprehension of the purport of Article 9(4) of the Inheritance Tax Act, thereby pointing this out without any ground.

(2) As to ground of appeal No. 2

The issue of whether a house is subject to the deduction for inheritance under the provisions of Article 11-2 of the Inheritance Tax Act shall not be determined on the basis of whether it is registered as a house on the public register, but on the basis of whether it is actually being used as a residential building, in light of the legislative intent of recognizing the deduction for inheritance, it is reasonable to determine whether it is a house. Therefore, the court below's decision that the real estate in the above ( Address 1 omitted) is registered as a house in the public register, but in fact, some of the first floor was used as a residential building for a considerable period of time, and the structure of the real estate is also a residential building, it is just to determine it as a house subject to the deduction for inheritance, and it cannot

In addition, the court below is also justified in calculating the value of the housing portion by multiplying the value of the building as above ( Address 1 omitted) by the ratio of the area occupied by the housing portion among the total area of the building. The arguments are groundless.

(3) As to the third ground for appeal:

In light of the records, the court below found that the deceased non-party 1 leased the building located ( Address 2 omitted) to non-party 2 and the non-party 3,00,000 won as the aggregate amount of the lease deposit, and recognized the fact that the plaintiffs inherited the above lease deposit repayment obligation, it is reasonable in light of the records, and it cannot be said that there was any error of misconception of facts due to the failure to exhaust all necessary deliberations or the violation of the rules of evidence as pointed out in the arguments. Therefore, it is without merit.

2. We examine the grounds of appeal against Plaintiffs 2, 3, and 4.

According to the reasoning of the judgment below, the court below determined that the defendant's taxation disposition of this case against the plaintiffs was unlawful since the plaintiff 1 et al. designated the taxpayer of inheritance tax as the plaintiff 1 et al. and notified the whole tax amount to the same plaintiff without clearly stating the particulars of each tax amount and calculation for each of the plaintiffs as co-inheritors and the plaintiff 1 et al., and that the tax amount of this case was not known as to the three remaining three persons except the plaintiff 1 and it was not revealed the relevant tax amount and the details of calculation were not revealed. In light of the records, the

In addition, even if the Defendant voluntarily cancelled the instant tax disposition after the pronouncement of the lower judgment, and again issued a payment notice by specifying the name of co-inheritors, the amount of tax according to their shares in inheritance, and the basis for the calculation thereof, the illegality of the said tax disposition can be determined at the latest by the materials submitted before the closing of argument at the lower court. Therefore, the foregoing circumstances cited in the arguments do not affect the lower court’s judgment that the instant tax disposition was unlawful.

3. Conclusion

Therefore, among the judgment of the court below, the part against the defendant against the plaintiff 1 is reversed and remanded to the court below. The defendant's remaining plaintiffs' appeal against the defendant is dismissed. The costs of appeal against the above dismissed appeal are assessed against the defendant who is the losing party. It is so decided as per Disposition by the assent of all participating judges

Justices Lee B-soo (Presiding Justice)