Seoul Administrative Court-2016-Gu Partnership-5726 ( December 23, 2016)

Cho Jae-2015-China 4618 ( December 31, 2015)

Whether the distribution of the disputed amount is a prior donation or a division of inherited property

Since the deceased's death in 27 years after the transfer of ownership to the deceased's sole name, the sale and the distribution of sale proceeds of the real estate of this case, which was made immediately after the deceased's transfer of ownership to the deceased's sole name, constitute the actual division of inherited property as a whole, and thus, the disposition

Article 13 of the Inheritance Tax and Gift Tax Act

2017Nu32120 Revocation of Disposition of Imposition of Inheritance Tax, etc.

AAAA

AA Head of the Tax Office

August 16, 2017

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

The Defendants’ imposition of inheritance tax and gift tax against the Plaintiffs as shown in the attached disposition details shall be revoked.

Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims against the defendants are dismissed in entirety.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance except for the dismissal or addition of part of the judgment of the court of first instance as follows. Thus, the meaning of the abbreviation used in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act (hereinafter the same shall apply to the judgment of the court of first instance).

○ The third 4th page "195-3" shall be read as "197-3".

○ Following the third 8th page, “each site of the instant real estate” is added to “each site of the instant real estate,” and “after the 9th end, the instant real estate was unregistered.”

The "as described in the attached Form 15" for 3 pages 15 shall be as shown in the attached Form, and the "Evidence 1 and 5 of Class 18" shall be as described in the attached Form, and the "Evidence 1, 2, 3-1, 3-4, 4, and 5-1, 5-2," respectively.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant disposition, based on the premise that the Plaintiffs received donations from BB one month prior to the death of BB, is unlawful for the following reasons.

1) The Plaintiffs, as co-inheritors of the deceased AA, intended to register inheritance of the instant real estate according to the inheritance share and sell it to a third party. However, for the convenience of sale, the Plaintiffs sold the instant real estate after completing the registration of transfer of ownership in the BB’s sole name with respect to the instant real estate after completing the registration of transfer of ownership in the BB’s sole name for the convenience of sale, according to the advice of the certified judicial scrivener that there is no problem even if the instant real estate was sold after the registration of transfer under the BB’s sole name. Accordingly, the Plaintiffs’ allocation of the key amount is not a donation from BB, but constitutes inheritance of the original inheritance share

2) Even if not, the fact that the plaintiffs received the shares of the issue amount can be deemed as having received the shares of inheritance as the heir of the deceased deceased BB.

B. Determination

1) Even if some of co-inheritors acquire property exceeding their own share of inheritance by mutual agreement as to inherited property, it shall be deemed that the inheritance was succeeded retroactively at the time of the commencement of inheritance, and it shall not be deemed that another co-inheritors received property from another co-inheritors (see, e.g., Supreme Court Decision 95Nu15087, Feb. 9, 196). Article 31(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter the same shall apply) provides that "property acquired by a specific inheritor in excess of their original share of inheritance after the commencement of inheritance becomes final and conclusive through the registration, transfer, etc. of inheritance (hereinafter referred to as "registration, etc.") and the property acquired by a specific inheritor in excess of their original share of inheritance after the division of inheritance was completed through consultation among co-inheritors, it shall be deemed that the portion of inheritance becomes final and conclusive and applied to cases where each inheritor becomes subject to separate consultation among heirss, etc.

(5) On the other hand, the plaintiffs were 1 to 20,000,000 won and were 1 to 30,000,000 won and 20,000 won and 1 to 30,000,000 won and 20,000 won and 1 to 30,000,000 won and 20,000,000 won and 1 to 30,000,000 won and 20,000,000 won and 20,000,000 won and 20,000,000 won and 20,000,000 won and 20,000,000 won and 3,00,000 won and 2,00,000 won and 1,000 won and 2,06,00 won and 3,00,00 won.

3) However, in full view of the following circumstances revealed in the above facts and the fact that the division of inherited property among co-inheritors can be freely determined by the co-inheritors without any restriction on the method of division, it is reasonable to deem that among the real estate in this case, the registration of transfer of ownership in the name of the deceased BB alone with respect to each building site in this case and the sale and the sale of the sale and the sale of the sale thereof immediately thereafter fall under the category of consultation on the deceased AA’s inherited property as a whole, and it does not constitute a donation from the deceased BB as it does not constitute a donation of the deceased BB after the actual consultation and division among the co-inheritors of the deceased AB.

① From April 15, 2013, the agreement on the division of inherited property between the deceased AA’s co-inheritors was prepared, around April 15, 2013, the deceased BB had significantly deteriorated health status due to the age of 91, and had been providing medical care and treatment to the long-term care institution for a considerable period. In such a situation, the Plaintiffs, co-inheritors other than the deceased BB at the time, who were co-inheritors, are allowed to inherit the instant real estate on their own, and they did not reveal any circumstances to give up their inheritance.

② Of the instant real estate, the ownership transfer registration was completed in the network BB’s sole name with respect to each of the instant real estate, and the net BB died after about 2 months from that date.

③ Out of the sales price of the instant real estate, expenses for hospital expenses, nursing expenses, funeral expenses, and lease deposit were disbursed within the scope of KRW 1.60,000,00,000, which is equivalent to the inheritance shares of the deceased BB, and such expenditure was consistent with the Plaintiffs’ assertion that the deceased AA’s inherited property was needed to dispose of the deceased AB’s inherited property, thereby appropriating hospital expenses and nursing expenses, etc., and that the opportunity was also seeking to divide the inherited property that was not adjusted after the deceased AAA’s death, and there is no particular unreasonable point in the Plaintiffs’ explanation to the same purport.

④ Inasmuch as a certified judicial scrivener or licensed real estate agent who participated in the inheritance registration, sale, etc. of the instant real estate submitted, it accords with the Plaintiffs’ assertion to the effect that the instant real estate was sold after being placed in the sole name of the deceased’s wife BB, the representative of coinheritors.

4) Therefore, the instant disposition, based on the premise that the issue amount allocated to the Plaintiffs constituted property donated by the network BB, is unlawful without any further determination as to the remaining arguments of the Plaintiffs.

3. Conclusion

Therefore, the plaintiffs' claim of this case seeking the revocation of the disposition of this case should be accepted on the grounds of its reasoning. The judgment of the court of first instance is just and the defendants' appeal against this conclusion is dismissed on the grounds that all of the defendants' appeal is without merit. It is so decided as per Disposition.