Suwon District Court 2010Guhap7254 ( October 21, 2010)

early 209 Heavy0237 (209.03.05)

No obligation for which extinctive prescription has elapsed shall be deducted as an inheritance obligation.

(1) The obligation of an inheritee, which is deducted from inherited property, refers to the obligation of an inheritee, the performance of which is deemed certain by the ancestor with a final burden of payment by the ancestor. Thus, the claim in this case is extinguished absolutely despite the lapse of the extinctive prescription period, apart from the issue of invoked in future litigation.

2010Nu37683 Revocation of Disposition of Levying Inheritance Tax

XX

O Head of tax office

Suwon District Court Decision 2010Guhap7254 Decided October 21, 2010

July 8, 2011

September 9, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of KRW 310,762,410 against the plaintiff on February 3, 2009 shall be revoked.

1. Details of the disposition;

A. On January 17, 2008, the Plaintiff (hereinafter “the inheritee”)’s heir on July 17, 2007, sentenced the amount of inherited property to KRW 2,801,813,690, value of donated property to the Defendant as KRW 905,100,00, value of donated property as KRW 1,732,90,000, and inheritance tax deduction amount to KRW 183,526,981.

B. From November 1, 2008 to December 20, 2008, the Defendant conducted an inheritance tax investigation with respect to the Plaintiff, and determined and notified the Plaintiff of KRW 310,762,410 as inheritance tax deduction on February 3, 2009 on the ground that the creditor, who is the Plaintiff, is unclear as to the existence of the obligation, among KRW 1,732,90,000, which was deducted from the value of inherited property, the amount of the inheritance obligation deduction that the Plaintiff deducted from the value of inherited property (hereinafter “instant disposition”).

C. On May 11, 2009, the Plaintiff filed an objection with the Director of the Central Tax Office against the instant disposition, but the said objection was dismissed on August 28, 2009, the Plaintiff filed a petition for adjudication with the Director of the Tax Tribunal on November 23, 2009, and the Director of the Tax Tribunal dismissed the Plaintiff’s request for adjudication on March 17, 2010.

[Reasons for Recognition] Facts without a partial dispute, Gap evidence 1 to 3 (including each number), Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On February 14, 1992, the decedent, who had been staying in the United States for studying from around 1988 to October 1995, sold the purchase price of four parcels of land (hereinafter “the instant land”) 650,000,000 (hereinafter “the purchase price”) to the Plaintiff. When the decedent returned to the Republic of Korea completely, the decedent agreed to refund the purchase price of this case to the Plaintiff at the time of the Plaintiff’s return of KRW 650,00,000 (hereinafter “the instant obligation”). However, the decedent’s mother was obligated to deduct the amount of the instant inherited property from 195 to 2001, and the decedent’s liability for the instant medical treatment expenses was unlawful since the decedent’s wife’s repayment of the amount of the instant property to the Plaintiff from around 1995 to the time of death of the decedent’s mother, and the decedent’s repayment of the amount of the instant property to the Plaintiff from around 2007 to the time of his death.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant debt exists

A) In light of the purport of Article 14(1)3 and (4) of the Inheritance Tax and Gift Tax Act (wholly amended by Act No. 9916, Jan. 1, 2010) and Article 10 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (wholly amended by Presidential Decree No. 22042, Feb. 18, 2010), an inheritee’s obligation to be deducted from the value of inherited property constitutes a special reason that exceptionally affects the determination of the taxable amount of inheritance tax under the Inheritance Tax Act, and thus, the obligor’s obligation to assert proof as to the existence thereof shall be deemed to be the person liable for duty payment who contests the taxable amount (see, e.g., Supreme Court Decision 83Nu410, Dec. 13, 1983).

B) According to the evidence evidence Nos. 5 and 6, it is recognized that the decedent, on July 13, 1992, sold the instant real estate registered under the name of the plaintiff on behalf of the plaintiff to ○○ Construction Co., Ltd. for KRW 650,00,000, and completed the registration of ownership transfer under the purchaser’s name on December 14, 1992. The decedent completed the registration of ownership transfer on December 14, 1992. The decedent, on January 1, 1993, kept the sales price of this case to the plaintiff on the part of the plaintiff, and prepared a cash custody certificate (Evidence No. 6-9) stating that the decedent would return the instant real estate to the plaintiff when he

However, in light of the following circumstances acknowledged in full view of the evidence No. 2, evidence No. 3-2, evidence No. 6-9, evidence No. 5-1, 2, Eul evidence No. 6, evidence No. 9-1, 2, Eul evidence No. 10-1, 2, and 3, and the overall purport of the pleadings, even according to all the evidence submitted by the plaintiff, it is insufficient to acknowledge that the debt of this case still exists at the time of inheritance, and there is no other evidence to acknowledge it otherwise.

① If, as evidence of this case’s obligation, the decedent and the Plaintiff had a certain pecuniary relationship to the extent that they were unable to repay this case’s obligation, barring any special circumstance, it is consistent with the empirical rule to deem that the Plaintiff, who was a father, returned to the United States and was in custody in Korea, would return the money to the Plaintiff when her mother returned to Korea pursuant to the aforementioned cash custody certificate, barring any special circumstance. However, the Plaintiff, on October 1, 1995, when her mother’s health worsens, was organized in U.S. life and her return to Korea. At around October 1995, the time when the Plaintiff started to live in Korea, the time when her mother arranged U.S. life and entered Korea, and there was no circumstance to deem that the decedent was in an economic difficult situation to the extent that her mother was unable to repay this case’s obligation. Therefore, even if the Plaintiff’s mother was unable to easily assert the Plaintiff’s heavy debt and her father’s disease from around 1995 to 2001.

② On October 19, 2006, the Plaintiff received gift tax of KRW 182,27,000,00 from an inheritee-dong OO-dong 00 to 229.3 square meters (the value of KRW 1,605,100,000; hereinafter referred to as “O-dong site”) which was owned by the decedent, by having the decedent take over a debt equivalent to KRW 700,00,00,000, such as a collateral security debt established on the said real estate, and paid KRW 182,27,00,00.

However, if the heir still has failed to return the above KRW 650 million, which had been liable to return to the plaintiff who was his father from October 1995 to 10 years, the heir would be in accord with the common sense that the heir would pay or be exempted from the above debt, in lieu of repayment of or in lieu of the above debt, when he donated the above OOdong site to the plaintiff. On the contrary, as the plaintiff's assertion, it is extremely exceptional that the decedent, his father, who is his father, has donated the above OOdong site with a value exceeding the debt amount, while he bears the obligation to return the above debt amount of KRW 650 million to the plaintiff, who is his father, who is his father. Further, if the plaintiff had the above claim against the decedent at the time of receiving OOdong site from the decedent, the plaintiff would not be entitled to receive the entire share of the above Odong site, but it would not have been attributable to the fact that the heir received only the remainder of the claim amount, which was the heir at the time of the donation.

③ From 195 to 2007, the decedent was confirmed to have earned a rent of KRW 550 million due to the lease of real estate. Also, KRW 700 million due to the Plaintiff’s donation of the Odong site was incurred by the decedent’s loan from △△ Bank as collateral on the O-dong site owned by the decedent, and the five-story building on the O-dong site owned by the Plaintiff. However, the amount of the decedent’s medical expenses, etc. incurred much more than the leased income of the decedent’s predecessor and his wife’s wife’s wife’s wife’s medical expenses, etc., or it was not deemed that the Plaintiff’s mother used the O-dong land and the building on its ground as medical expenses, etc. from around 1995 to July 17, 2007, the decedent’s debt repayment cannot be concluded to have not been performed solely on the basis of the following reasons.

2) Additional determination on the assertion of extinctive prescription

A) The Defendant asserts that even if it is recognized that the Defendant had the instant obligation against the Plaintiff even if, at the time of commencing the inheritance, the instant obligation cannot be sold as an obligation to be deducted from the value of inherited property due to the extinction of the extinctive prescription as at the time of commencing the inheritance. As seen earlier, as long as it was determined that the instant obligation did not exist, it is unnecessary to further examine, but it is not necessary to issue this case, and thus,

B) The amount of an inheritee’s obligation to be deducted from the value of inherited property refers to the obligation for which it is clearly assumed that the inheritee would have to pay to the inheritee ultimately at the time of commencing the inheritance (Supreme Court Decision 90Nu10391 Decided April 9, 191). In this case, the Health Department, the inheritee determined the due date of the instant obligation when the Plaintiff returned completely to the United States and returned to Korea. The fact that the inheritee died on July 17, 2007 is as seen earlier, and the fact that the Plaintiff arranged U.S. life and returned to Korea around October 1995 that the Plaintiff returned to Korea is the Plaintiff and the obligation of this case was ten years after the expiration of the ten-year extinctive prescription period, which was the date of commencing the inheritance, and there was no need for the inheritee to pay to the Plaintiff, and thus, it cannot be said that the inheritee would have to pay the obligation ultimately borne by the decedent to the Plaintiff.

C) As to this, the Plaintiff: (a) around January 17, 2004, when the Plaintiff returned completely to Korea and live in Korea, the starting point of the extinctive prescription for the instant obligation is around January 17, 2004; (b) the inheritee promised to repay the instant obligation to the Plaintiff several times before the death of the inheritee; and (c) even if the extinctive prescription has expired, the Defendant did not have the right to defense against the instant obligation; (b) even if the Defendant was in a position to defend the extinctive prescription period, if the father, who is the father, believed that it is unnecessary to exercise the right to defense against the instant obligation; and (c) the Defendant’s exercise the right to defense against the extinctive prescription period after the death of the inheritee, who is a third party, cannot be allowed to exercise the right to defense against the extinctive prescription period; and (d) it is presumed that there is little possibility that the Defendant would have renounced the extinctive prescription interest, and thus, it would not be presumed that the heir would have given up the inherited property and the heir’s inherited property.

First of all, we examine the above argument: (a) the Plaintiff is the Plaintiff, in light of the Plaintiff’s status of entry and departure management (see evidence No. 3-2, No. 13) and the circumstances leading to the Plaintiff’s return to Korea around October 1995, and the Plaintiff’s above-mentioned person appears to be true, and the assertion against this is not acceptable.

Next, there is no evidence to acknowledge the fact that the decedent promised to repay the claim to the Plaintiff several times after the occurrence of the claim in this case, and there is no evidence to acknowledge that the decedent promised to repay the claim to the Plaintiff.

Next, we examine the above three arguments.

As seen earlier, the obligation of the inheritee, which is deducted from inherited property, refers to the obligation of the inheritee, for which the obligation of the inheritee is deemed to be guaranteed. If the inheritee bears the obligation for which the extinctive prescription has already been completed against a third party, it is common to recognize that the inheritor does not have the obligation to repay it in accordance with the empirical rule. Considering that, inasmuch as there are no special circumstances to continuously pay the obligation despite the fact that the inheritee had already completed the extinctive prescription at the time of inheritance, the obligation for which the extinctive prescription has been completed can be deemed as an obligation of the inheritee, regardless of whether the tax authority is in the position to invoke the defense of the extinctive prescription of the obligation, and thus, it does not constitute

In the instant case, it cannot be presumed that the decedent and the Plaintiff renounced the interest of the statute of limitations on the sole basis of the fact that they were in the relationship between the decedent and his father, and it is not recognized that the Plaintiff had actively sought the performance of the instant obligation after returning to the Republic of Korea.

As such, in light of the fact that there is no trace of considering the existence of this case’s obligation in doing a juristic act regarding property after the Plaintiff returned to the Republic of Korea, there is no special circumstance that the inheritee would continue to bear and perform the obligation even after the extinctive prescription of the obligation has expired at the time of inheritance. Therefore, the instant obligation is not a debt recognized by the inheritee as having to be performed by a final and conclusive entry, and thus, it cannot be deemed as an inheritor’s obligation deducted from inherited property, and even if the decedent’s defense of extinctive prescription is made by the decedent, it cannot be deemed as abusing

Meanwhile, according to the evidence evidence No. 24, it is acknowledged that the co-inheritors, including the plaintiff and the plaintiff, who succeeded to the status of the inheritee of this case after the inheritance of this case, expressed their intent to waive the prescription benefits of this case. However, in light of the time of renunciation and the circumstances leading up to the renunciation, the waiver of the prescription benefits of this case by the co-inheritors seems to be aimed at avoiding part of the inheritance tax to be borne by the plaintiff by receiving the deduction of the debt of this case from the value of the inherited property in light of the time of renunciation and the circumstances leading up to the renunciation, and it cannot be said that there was a intention to waive the prescription benefits of the inheritee after the inheritance of this case, and the nature of the obligation of this

Finally, as to the above argument, it can be seen that the obligation of this case was extinguished at the time of commencing the inheritance date, and thus, it is uncertain that it would be performed ultimately because it would not be deducted from the inherited property, and it cannot be viewed that the inheritance tax is levied on the inherited property after the excessive assessment of the value of the inherited property is made.

D) Therefore, the Plaintiff’s assertion that the instant obligation ought to be deducted from inherited property because the instant obligation has not been extinguished by prescription is also without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it appears to be a single mother or there is no ground. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.