Busan District Court-2017-Gu Partnership-21792 ( October 18, 2018)

The disposition of this case in which the lease deposit, which shall be deducted from the inherited property, is erroneous;

(1) It is reasonable to deem that the security deposit for the lease of the real estate of this case was received and managed by the decedent regardless of the ownership or lease name of the real estate.

Public charges, etc. deducted from the value of inherited property under Article 14 of the Inheritance Tax Act, and non-Inclusion in the taxable value of donated property of a public corporation, etc.

2018Nu23640 Revocation of Disposition of Imposing Inheritance Tax

literatureA

○ Head of tax office

on October 19, 2019

on October 31, 2019

1. Of the judgment of the court of first instance, the part against the defendant in excess of the order to revoke is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

The part of the Defendant’s inheritance tax (including additional tax) of 2010 against the Plaintiff is revoked in excess of the either party-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The Defendant’s disposition of imposition of the inheritance tax(including additional tax) of X. X. 2010 against the Plaintiff shall be revoked. The disposition of imposition of the inheritance tax(including the additional tax) of X. X. 2010 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account each entry of Gap evidence 1, 2, Eul evidence 1 through 3, and 5 through 7 (including branch numbers; hereinafter the same shall apply) and the whole purport of pleadings:

A. The deceased door00 (hereinafter referred to as “the decedent”) died in XX. XX. The heir, who is a child, has the Plaintiff, doorB, literacy, doorD, doorE, doorF, and doorG (hereinafter referred to as “he co-inheritors”).

B. literatureD filed a tax base return on inheritance tax to be paid as a capital-level or a capital-level member for the purpose of creating the taxable value of the inheritance tax on X. XX. The tax amount to be paid was a capital-level or an income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based income-based

C. AH regional tax office conducted an inheritance tax investigation on co-inheritors from October 201 to October 201, 201, and determined and notified the Defendant of the inheritance tax with the content of reducing the inherited property value to the relevant class, the relevant class, the relevant class, the relevant class, and the value of the donated property from 00 won to the relevant class, the relevant class, the relevant class, and the relevant value of the donated property. Accordingly, the Defendant determined and notified the Defendant of the determination on the inheritance tax and the relevant class, the relevant class, the relevant class, and the relevant class, (including the inheritance tax and the additional tax) [including the inheritance tax, the relevant class, the relevant class, the relevant class, the relevant class, the amount of tax determined, the amount of tax, the penalty tax, the amount of penalty tax, the amount of penalty tax, the amount of penalty tax, the amount of penalty tax to be reported, the amount of penalty tax to be paid, and the amount of penalty tax

D. Since then, the director of the tax office conducted an integrated investigation into the corporate tax of the KK Foundation (hereinafter referred to as the “KK Foundation”) from the date of October 2014 to the date of October 2014, and notified the Defendant of taxation data to include the pre-donation property within five years in the taxable value of inheritance tax, on the ground that the KK Foundation does not constitute a public-service corporation. The Defendant: (a) conducted an investigation into the inheritance tax revision in X, and then notified the Defendant of the taxation data so that the pre-determined property should be included in the taxable value of inheritance tax; (b) the omitted financial property capital gains, the capital gains, the total amount of the capital gains, the capital gains, the capital gains, the capital gains, the capital gains + the capital gains, the capital gains + the capital gains, the additional tax on the decedent’s title (including the ownership of real estate); and (c) the amount of additional tax + the amount of additional tax on the capital gains to be returned to the KK Foundation; and (d) the amount of additional tax to be included in the capital gains.

E. On 2016, the Plaintiff filed a tax appeal against the instant disposition in XX. The Tax Tribunal rendered a decision to rectify the tax base and tax amount based on the result of re-examination as to whether the difference between the Plaintiff’s lease deposit and the registered lease deposit obligation, recognized as an inheritance obligation, belongs to the actual decedent or included in the inherited property.

F. Accordingly, the Defendant’s re-investigation and disposition are deemed reasonable.

XX. Upon notification to the Plaintiff on 2017, the Plaintiff filed the instant lawsuit in XX. 2017.

G. Meanwhile, the amount of the obligation of the inheritee’s lease deposit, which is claimed by the Plaintiff or deducted from the Defendant’s recognition and the value of the inherited property in the course of the instant disposition and tax trial, is as follows (if the entire real property is collectively named, the “each of the instant real property” shall be deemed to be “each of the instant real property,” and when each of the instant real property between the Plaintiff and the Defendant is collectively named, “in the event of a dispute between the Plaintiff and the Defendant,” it shall be deemed to be “in the first place,”

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Article 16(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) of the K Foundation falls under the “public-service corporation”, and thus, the K Foundation’s K Foundation’s contribution capital gains and capital gains shall not be included in the taxable value of inherited property.

2) Among each of the instant real estate, the lease-based commercialization, commercialization, and commercialization (i.e., commercialization, commercialization - commercialization, and commercialization) is an inheritance obligation under Article 14(1)3 of the former Inheritance Tax and Gift Tax Act, and thus, should be additionally deducted from the inherited property value.

3) Co-inheritors, including the Plaintiff, did not have the awareness that the Defendant’s contributions to the KK Foundation constituted inherited property, and among co-inheritors, the said contributions constitute inherited property by the court’s adjudication or judgment, etc. on the division of inherited property (Seoul Family Court Decision 2013 Mahap0000, 2014 Mahap0000, 2014 Mahap0000, 2016 Mahap000, 2000, 201) was pending. Therefore, even if the inheritance tax was not reported and paid on the said contributions, it constitutes a justifiable ground prescribed in Article 48(1) of the former Framework Act on National Taxes (Amended by Act No. 16097, Dec. 31, 2018; hereinafter the same) and thus, a report and penalty tax shall not be imposed as to the Defendant’s contributions to the KK Foundation.

(b) Related statutes;

[Attachment] The entry of "related Acts and subordinate statutes" is as follows.

C. Determination

1) Whether the property is included in the taxable value of the KR Foundation’s contribution

According to the statement in Eul evidence No. 4, K Foundation is deemed to be a foundation established for the purpose of contributing to cultural promotion by collecting, preserving, and exhibiting books, ancient documents, art works, etc. with the contributions of the decedent to the Republic of Korea and the world. Furthermore, it does not have any evidence to regard it as a "public service corporation, etc." under Article 16 (1) of the former Inheritance Tax and Gift Tax Act and Article 14 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, as alleged by the plaintiff, as alleged by the plaintiff, DoD, and DoB, in full view of the purport of the argument in Eul evidence No. 4, the plaintiff, DoD, and DoB filed against the K Foundation for the performance of the procedure for filing a claim for the transfer registration of ownership against the plaintiff, KR, 2010 △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, the Busan High Court case, and it does not constitute a non-profit corporation under the Civil Act.

2) Whether the value of the lease deposit and the inherited property for the key real estate is deducted

A) Whether the inheritance obligation is inherited

(1) According to Gap evidence Nos. 4, 12, and Eul evidence Nos. 5, 7, each of the three issues at the time of the deceased's death, the co-inheritors's joint ownership of literatureE, literatureCC, literatureB, DoD, among the co-inheritors, and the five issues are co-ownership of the deceased and co-inheritors, such as plaintiffs, gateF, literatureCC, DoD, doorB, E, doorB, etc. among the decedents and co-inheritors, 6, and the co-inheritors' joint ownership of the 8 issues, 10 to 12 issues are co-inheritors, 10 to 10, 30, 107, 30, 107, 107, 207, 10G items of each real estate, 3G items of each real estate, 3G items of real estate, 3G items of real estate, and 10 to 50,000,000.

(2) However, Article 14(2) of the former Framework Act on National Taxes provides that "the provisions on the calculation of the tax base in the tax-related Acts shall apply to the substance of income, profit, property, act or transaction, regardless of the name or form of the transaction, regardless of the foregoing," and the following facts or circumstances revealed in light of the overall purport of the pleadings, and the evidence and the witness of the first instance court and the witness of the first instance court Kim △△△△△ in light of the provisions of the former Framework Act on National Taxes, it is reasonable to view that the lease deposit obligation with respect to the pertinent real estate should be deducted from the value of inherited property pursuant to Article 14(1)3 of the former Inheritance Tax and Gift Tax Act,

① In light of the testimony details of the first instance witness Kim △△△△△△△ on the process of acquiring key real estate, the grounds for registration of key real estate and its date, the share ratio of co-inheritors, a co-owner, etc., the key real estate is substantially formed with the funds of the inheritee

The property seems to have been distributed to co-inheritors.

② Since before the death of an ancestor, the decedent has been in charge of the lease and management of outstanding real estate on his/her own account with the authority to entrust the lease relationship with each other, and has received and managed and disbursed the lease deposit and the profit from the lease in his/her name.

③ On the other hand, there is no circumstance to deem that co-inheritors either participated in the lease agreement of the disputed real estate or acquired all or part of the lease deposit and lease profit by the time of the predecessor’s death.

④ In light of the fact that a lessor’s name in the key real estate lease agreement is not completely inconsistent with each of the co-owners of the pertinent key real estate, and that a lessee of the key real estate has submitted a confirmation letter stating that he concluded a lease agreement with the decedent and paid a lease deposit and a rent to the decedent, etc., there may be room to regard the lease agreement of the key real estate as a real party by the decedent as being prepared by some co-inheritors in form according to the name of ownership of the key real estate when the decedent entered into a lease agreement as the ownership of the key real estate. Therefore, it is difficult to say that the lessor

⑤ From the lawsuit of filing a claim for ownership transfer registration against literatureG (Seoul District Court 2006 △△△△△△△△, Busan High Court 2007 △△△△△△△△△△△△△△△), the conciliation was concluded between K Foundation and the inheritee and the Plaintiff, who is a party to the claim, and the Defendant, continued to acquire the management and lease proceeds of the remaining real estate except the three key real estate out of the key real estate until the time the decedent was the deceased, and to bear both the lease deposit and the obligation of the lease deposit and the taxes and the taxes. This seems to have been clearly confirmed as follows: (a) the co-inheritors and the co-inheritors raised an objection against the right to lease the real estate of the deceased, regardless of the validity of the conciliation protocol as alleged by the Defendant, and accordingly, (b) the right to lease and manage the real estate of the deceased is clearly confirmed.

(6) The lease is established when one of the parties has agreed to allow the other party to use the object and make profits from it, and the other party has agreed to pay rent, even if the lessor has no ownership to the object, the lease contract may be concluded, and the obligation to refund the lease deposit received under the contract shall be borne by the lessor, other than

B)the amount of lease deposit claims to be deducted from the value of inherited property;

(1) Comprehensively taking into account the purport of the entire arguments as seen earlier, the amount of the lease deposit of the real estate at issue at the time of the decedent’s death is acknowledged to be the commercialization, the commercialization, the commercialization, and the commercialization, the commercialization, the commercialization, and the commercialization, the commercialization, the commercialization, and the commercialization, the commercialization, the commercialization, and the 10th real estate in the case of the key real estate at issue at issue at issue at issue at issue at issue at issue at the time of the decedent’s death (i.e., the difference between the decedent and the commercialization, the total commercialization, the commercialization, the commercialization, the commercialization, the 11, and the commercialization, the total amount of the lease deposit at each real estate at issue at issue at issue at issue at issue at the time of the decedent’s death (i.e., the total amount of the lease deposit at issue at issue at issue at the time of the decedent’s death at issue at issue at the level of 1,24, and the commercialization.

Furthermore, the Plaintiff asserts that the amount of the lease deposit to be deducted with respect to each of the issues at issue real estate Nos. 3 and 5 is an institution-level or institution-level, but the inheritance obligation to be deducted from the inherited property value is limited to the obligation at the time of the death of the decedent. In full view of the purport of the entire arguments in the evidence as seen earlier, the amount of each lease deposit claimed by the Plaintiff in excess of the above-mentioned amount with respect to each of the issues at issue real estate Nos. 3 and 5 is recognized as having been increased after the death of the decedent (i.e., the amount of the lease deposit by the Plaintiff’s assertion was the increased amount after the decedent’s death (i.e., the pertinent real estate at issue No. 3 was increased from the institution-level or institution-level, and the rent deposit for the leased real estate at issue at issue at No. 5 was increased from the institution-level or institution-level, after the decedent’s death

(2) As to this, the Defendant asserted that the lease contract of each of the instant real estate items Nos. 7, 8, and 10 is terminated at the expiration of the period prior to the death of the inheritee and the lease deposit is already returned, and thus, it shall not be deducted from the value of inherited property. However, there is no evidence to acknowledge this. Rather, in full view of the overall purport of the pleadings at the testimony of the △△△△△ witness at the first instance trial, it can be acknowledged that the lease contract of each of the instant real estate was concluded prior to the death of the inheritee and it was implicitly renewed until

3) Whether the imposition of the penalty tax on the return and the unfaithful payment is legitimate

A) Additional tax is an administrative sanction imposed as prescribed by the Act in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim where a person without tax payment violates various obligations, such as a return and tax payment, as well as a return under the Act, and is not imposed when justifiable grounds exist (Article 48(1) of the former Framework Act on National Taxes). Therefore, in determining the legitimate grounds for exemption of additional tax, where a taxpayer is unable to assume liability for failure to perform his/her duties due to a conflict of views in the interpretation of the tax-related Acts and subordinate statutes, or where there are extenuating circumstances making it difficult to criticize that the taxpayer neglected to perform his/her duties, such as when it is difficult to expect the performance of his/her duties, etc. (see, e.g., Supreme Court Decisions 2016Du4711, Oct. 27, 2016; 2017Du36885, Jul. 11, 2017).

나) 을 제4호증의 기재에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정들 즉, 앞서 본 바와 같이 피상속인의 KK재단 출연금은 상속세 과세가액에 포함되는 점, 공동상속인들 중 원고, 문DD, 문BB은 문DD의 상속세 과세표준신고 전인 2010. XX. XX. 피상속인의 KK재단 출연금에 속하는 부동산(◇◇시 ☆구 ○○○-○○, 같은 구 △△동 ○○-○, 같은 동 ○○-○ 부동산)의 소유권이전등기절차이행 청구권이 상속재산에 해당함을 전제로 KK재단에 대하여 위 1)항에서 본 소유권이전등기절차이행 청구 소송을 제기한 바 있는 점, 원고를 비롯한 공동상속인들에게 위 출연금이 상속재산에 해당한다는 인식이 없었다는 사정은 단순한 법률의 부지나 오해에서 비롯된 것에 불과하고, 원고의 주장과 같은 상속재산분할심판이 계속 중이라 하더라도 그것만으로 위 출연금이 상속재산에 해당하는지 여부에 관하여 세법의 해석상 견해의 대립이 있는 경우라고 보기 어려운 점 등을 종합해 보면, 원고의 주장과 같은 사정만으로 위 출연금에 관하여 상속세를 신고 및 납부하지 않은 데에 구 국세기본법 제48조 제1항에서 규정한 정당한 사유가 있다고 인정하기 부족하고, 달리 이를 인정할 만한 증거가 없으므로, 원고의 위 주장은 이유 없다.

(iv) a reasonable tax amount;

The reasonable amount of inheritance tax calculated by deducting the amount of the lease deposit debt of the above-mentioned real estate from the value of the inherited property shall be a total of the following:

3. Conclusion

Therefore, the part of the disposition in this case which exceeds the capital gain or capital gain (including additional tax) among the dispositions in this case shall be revoked illegally. Thus, the plaintiff's claim in this case shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it is without merit. Since the part against the defendant in the judgment of the court of first instance which exceeds the above revocation part is unfair as it is concluded differently, the defendant's appeal is partially accepted, and the plaintiff's claim corresponding to the above revocation part shall be revoked, and the defendant'