When shares are donated and shares returned as a legal reserve of inheritance are included in the inherited property, when a request for correction of gift tax has been filed with the lapse of the period for request for correction after delay.

Where the Plaintiff received a gift tax return of the instant shares and received a final and conclusive judgment due to a lawsuit filed for the return of the heir’s reserved portion, he/she shall file a request for the subsequent correction within six months from the date of the final and conclusive judgment, and the Plaintiff’s request is without merit.

Article 79 of the Inheritance Tax and Gift Tax Act (Special Provisions)

Seoul Administrative Court-2018-Gu Partnership-616

An*** 2

*The Director of the Tax Office

Dismissal

oly 2018.16

. 2018.13

1. The plaintiffs' primary and conjunctive claims are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

In the first place, according to the disposition of inheritance tax issued by the Defendant on June 8, 2017, the collection disposition of the tax amount to be paid by the Defendant to each Plaintiff as of June 15, 2017 is revoked. In the second place, the part exceeding KRW 411 and 00 among the disposition of inheritance tax imposed by the Defendant against the Plaintiffs as of June 8, 2017 is revoked.

1. Details of the disposition;

A. On November 10, 1995, the plaintiffs and the non-party ○○ donated 67,660 shares, each of 16,915 shares of the ** Industry Co., Ltd. (hereinafter referred to as “* industry”) from September 10, 1997, and reported and paid gift tax.

B. Gamb* (hereinafter referred to as "the decedent") died on October 20, 2005, and the plaintiffs and the non-party ○○○, Ansan*, and Ansan-gu, and the non-party 1, and the non-party 1, the non-party 1, and the non-party 1,

C. In accordance with the final and conclusive judgment (Seoul Central District Court 2009Da139527, 2009Gahap139534, hereinafter referred to as the “instant reserved portion”) with respect to the shares of the industry (i) the Plaintiffs and Ansan○○ filed a lawsuit claiming the return of reserved portion against the Plaintiffs and Ansan○○○ in return for the inheritance of the shares of the industry) on May 14, 2008; (ii) the final and conclusive judgment (Seoul Central District Court 2009Gahap139527, 2009Gahap139534, 139534, hereinafter referred to as the “instant reserved portion”) with respect to the shares of the industry (i) the Plaintiffs and Ansan○○ in return for the forced portion of the shares of the industry (i) on September 30, 2011.

[** details of return of legal reserve of inheritance of industrial shares]

Classification

The number of donated shares

Legal Reserve Return Stocks

agency.

Ansan-gu

Total

67,660

4,856

4,757

Ana (a)

16,915

(1,214)

(1,346)

AB

16,915

(1,214)

(1,138)

AnnCC (AC)

16,915

(1,214)

(1,135)

Ansan ○

16,915

(1,214)

(1,138)

D. On the other hand, the plaintiffs, Ansan-gu, and Ansan-ri, are inherited from the decedent, Gangnam-gu* 100-00 m2, Dong 180.4 m2, but did not report and pay inheritance tax.

E. (1) On March 8, 2008, the Defendant: (a) investigated the first issue of adding the above real estate to the taxable value of inherited property; (b) investigated the second issue of adding 4,757 shares to the taxable value of inherited property returned to △△△△ (including additional taxes); (c) on March 10, 2014, notified the Plaintiffs of the increase in inheritance tax ○○○ (including additional taxes); and (c) on March 10, 2014, the first issue of the notice of tax payment by heir ○○○ (including additional taxes); and (d) on June 8, 2017, the first issue of the notice of tax payment by heir ○○ (including additional taxes) and the first issue of tax payment by heir 4,856 shares returned to the Plaintiffs; and (e) on each of the above notice of tax payment by heir ○○ (hereinafter referred to as “the ceiling of inheritance tax payment by mistake”); and (e) the Defendant stated the Plaintiffs’ joint and several heir 16, respectively, the heir 601.

[Amount of tax payable by inheritor and details of payment notice by Joint and Several Taxpayers]

An inheritor

Relation

Inheritance Shares

Total amount of tax payable;

(1.2.3rds.

3. High-class shares

Amount of payable tax;

Limit of the amount of joint and several liability;

agency.

A.

36.02

493,741,649

485,012,467

547,009,357

Ansan ○

A.

0.17

2,452,769

0

2,717,388

AD

A.

5.74

78,621,981

69,892,797

87,104,176

Ansan-gu

A.

40.85

59,894,880

18,228,297

620,299,583

AB

A.

5.74

78,621,981

69,892,797

87,104,176

ACC

A.

5.74

78,621,981

69,892,797

87,104,176

A

A.

5.74

78,621,981

69,892,797

87,104,176

guidance.

100

1,370,577,222

82,811,952

1,518,443,032

F. Meanwhile, around May 16, 2017, the Plaintiff AB and ACC filed a claim for correction with the director of the Amb and AmCC to the head of the AmB office, and at that time, the Plaintiff Amb requested the director of the Gangnam Tax Office to refund the gift tax equivalent to the shares returned as the forced reserve of this case, but all were rejected on the grounds of the order for correction.

G. On September 1, 2017, the Plaintiffs asserted as follows 2-A and each of the instant dispositions to the Defendant.

The Defendant filed an objection against the portion. Article 55(3) of the Framework Act on National Taxes and the Enforcement Decree of the same Act 44

Article 2-2 and General Rule 55-44-2.11 of the same Act were transferred to the Commissioner of the National Tax Service, and the Commissioner of the National Tax Service, deeming the Plaintiffs to have filed a request for review against a disposition rejecting a request for correction (return) by the Director of the sericultural Tax Office and the Director of the Gangnam Tax Office, and dismissed the request on October 31, 2017 on the ground that there was no error in the disposition of the disposition of the disposition authority

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1 through 8 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiffs' assertion

1) Although the Plaintiffs paid gift tax on the instant reserved shares, it was unlawful to levy a second inheritance tax on the said shares in violation of the principle of prohibition of double taxation.

2) The Plaintiffs have a gift tax refund claim (83,849,034 won, 272,52,521,202 won, and 324,586,352 won, additional dues, local taxes, and local taxes) on the stocks returned to the instant reserved portion. The Plaintiffs applied to the Defendant for the appropriation of the Plaintiffs’ inheritance tax liability within the scope of the Plaintiffs’ individual tax payable and joint tax liability amount pursuant to Article 51(4) of the Framework Act on National Taxes. Accordingly, the Plaintiffs’ obligation to pay inheritance tax is either appropriated under Article 51(2) of the Framework Act on National Taxes or under the Civil Act.

All of them were extinguished in accordance with the doctrine of offset.

3) Accordingly, the part on the plaintiffs among the notice of tax payment by heir of this case is sought to be revoked. In addition, the part on the notice of tax payment by heir of this case is sought to be revoked in excess of 41,821,041 won [209,678,391 won (=69,892,797 won x 3) in total, which is appropriated as a refund x 261,312,528 won (87,104,176 won x 87,176)] of the notice of tax payment by inheritance of this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(i)type of consolidation;

The Plaintiffs initially imposed on each Plaintiff as of June 8, 2017 by the Defendant, ○○○○○ in the year 2005.

The plaintiff sought revocation of the disposition of imposition on the tax amount to be imposed on each plaintiff among the plaintiff, ○○○○, and the jointly liable limit amount of the tax amount to be imposed on each plaintiff. The defendant's objection to the disposition of collection based on the notice of tax amount by each heir on June 15, 2017, as mentioned in the above A-A-3, was added to and revised to the primary claim, and the contents of the plaintiff's claim for revocation of part of the disposition of imposition of the inheritance tax of this case as of June 8, 2017, were

Since there is no logical relationship, claiming a number of claims to be joined purely simply as preliminary claims are not allowed by combining them (Supreme Court Decision 2008 December 11, 2008).

High Court Decision 2005Da51495, Supreme Court Decision 2009Da10898, Dec. 24, 2009

However, the revocation of the part against the plaintiffs among the collection disposition following the notice of tax amount by heir of this case claimed by the plaintiffs and the partial revocation disposition of the inheritance tax of this case does not seem to have any logical relationship or incompatible relationship between the claims for partial revocation. Thus, each independent claim is independent.

Therefore, it is reasonable to see that the application for change of the above content is unlawful as a matter of principle. However, the application for change of the plaintiffs' claims is to seek simple annexation of the meaning of designating the order of determination as to each claim.

2) Determination on this safety defense

The Defendant asserts to the effect that the instant lawsuit is unlawful since it did not go through the procedure of the preceding trial on the instant disposition of inheritance tax.2) However, the Plaintiffs raised an objection against the Defendant to the effect that the instant lawsuit is unlawful, and that the Defendant brought an objection against the Commissioner of the National Tax Service on the grounds that the Plaintiff’s disposition disputing the imposition of inheritance tax or the jointly and severally liable limit of tax liability is subject to the request for examination, not the objection. However, the Commissioner of the National Tax Service examined and decided on the legality of the refusal of the request for correction by the head of the sericultural Tax Office and the Gangwon Southern Tax Office, which is not the Defendant’s notice of imposition of inheritance tax or the notice of tax amount by heir. According to these facts, it is reasonable to deem that the Plaintiffs filed a request for review on the instant notice of imposition of inheritance tax or the notice of tax amount by heir, but still failed to receive the notice of its determination. In such cases, the Plaintiffs may institute an administrative litigation from the date when the period for determination of 90 days for the

3) Determination as to the claim for revocation of notice of tax amount by heir of this case

Since a disposition of imposition and a disposition of collection are separate dispositions, the illegality of a disposition of collection cannot be asserted on the ground of such defect, unless the disposition of imposition becomes null and void due to significant and apparent defects or the disposition of imposition is revoked.

In addition, according to Article 3(1) and (4) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “former Inheritance Tax and Gift Tax Act”), inheritance tax is jointly and severally liable to pay within the scope of property received or to be received by each heir or testamentary donee. Determination of an inheritance tax base and tax amount is a duty payment notice that specifically determines a taxpayer’s tax liability, and also holds the effect as a duty payment notice and a request for performance, and the tax authority must issue a notice of collection by specifying the limit of joint and several tax liability to be borne by co-inheritors (see, e.g., Supreme Court Decision 2014Du3471, Jan. 28, 2016)

The notification of the tax amount by heir of this case also has the nature of the collection disposition on the tax amount by heir and the limit of the joint and several tax liability, and the plaintiffs seek revocation of the collection disposition based on the notification of the tax amount by heir of this case. However, as seen above, the plaintiffs asserted that the return of the reserved portion shares of this case violates the principle of prohibition of double taxation, in itself, which is included in the taxable value of inherited property and the inheritance tax is determined, or that the plaintiff's obligation was already appropriated and extinguished as the refund amount before the imposition and notification of inheritance tax of this case, and thus, the disposition of inheritance tax against the plaintiffs is unlawful. Thus, the plaintiffs asserted that the imposition disposition of inheritance tax against each heir of this case is unlawful, and there is no other assertion as to the defect in the notification of the tax amount by heir of this case, such as the calculation of tax amount by heir or joint and several tax liability limit, or the error in the procedure of notifying the amount of tax by heir of this case. Accordingly, the plaintiffs' assertion alone alone cannot be viewed as null and void.

4) Determination as to the claim for revocation of the instant assessment and notice of inheritance tax

A) Determination on the assertion of violation of the principle of prohibition of double taxation

B) As seen in Article 3-2(2) of the former Inheritance Tax and Gift Tax Act, since the property returned by the person entitled to legal reserve of inheritance is considered to be the property acquired by inheritance at the time of the commencement of inheritance, it shall be included in the value of inherited property, and Article 3-2(3) of the former Inheritance Tax and Gift Tax Act shall be jointly and severally liable to pay inheritance tax within the limit of the property received or to be received by each heir or testamentary donee. The Plaintiffs are liable to pay inheritance tax calculated by the ratio of the inheritance tax re-calculated based on the property that was received or to be received by each of the Plaintiffs to the right holder of legal reserve of inheritance of this case due to the inclusion of the returned stocks

As a result, although the plaintiffs already paid gift tax as a donee on the same property as the shares returned to the legal reserve of this case, they would be responsible for the increased inheritance tax due to the inclusion of the shares returned to the legal reserve of this case in the inherited property. However, the rights holder of the legal reserve of this case

The plaintiffs are included in inherited property as the secured portion returned shares are included in inherited property by exercising the right to claim the return of the class.

As long as inheritors, including the above, are liable to pay increased inheritance tax, even if the tax authority deemed the Plaintiffs as donee on the shares returned as inheritance tax, the Defendant’s imposition of inheritance tax again against the Plaintiffs cannot be deemed unlawful as double taxation. However, as seen in Article 2(2) of the Framework Act on National Taxes, in order to prevent any unreasonable burden of gift tax and inheritance tax on the same property, if the pertinent donated property is subject to legal reserve of inheritance and is distributed to another heir upon a court’s decision, it is only stipulated that a claim for determination or correction as to the gift tax originally reported may be filed.

The plaintiffs' assertion on this is without merit.

B) Determination on the assertion of extinguishment of inheritance due to appropriation of national tax refund

For the following reasons, the plaintiffs paid the original payment of the reserved portion stocks of this case to the plaintiffs

A refund equivalent to one gift tax cannot be deemed to exist. Accordingly, the Plaintiffs’ claim for refund money cannot be deemed to exist.

The plaintiffs' assertion on the extinguishment of inheritance tax on the premise of existence is without merit.

(1) Article 51(1) of the Framework Act on National Taxes provides that "if a taxpayer has erroneously paid or overpaid the amount of national tax, additional dues or disposition fee for arrears, or there is any amount of tax to be refunded under the tax-related Acts (where there is any amount of tax to be deducted from the amount of tax refundable under the tax-related Acts, referring to the remaining amount after deducting it), the head of a tax office shall immediately determine such erroneously paid

(1) if the tax liability does not exist from the beginning or is extinguished thereafter, the State owns;

Since the tax payable constitutes unjust enrichment without any legal ground, the taxpayer has paid the tax.

In the event of any erroneous payment, excess payment, or tax refund, unjust enrichment under the Civil Act to the State;

The Framework Act on National Taxes provides that "National Tax refund" shall be the "national tax refund" and the refund shall be suspended.

The head of the tax office, under Article 51(2), shall be the national tax refund.

As prescribed by Presidential Decree, the amount determined shall be appropriated for the disposition on default of national taxes, additional dues, or taxes, and the tax amount refunded to the taxpayer under the tax-related Acts shall be refunded.

National taxes or tax-related Acts to be paid by a notice of tax payment under paragraph (2) above, if any;

may claim that the national tax payable voluntarily is appropriated, and such appropriation shall be made for the amount appropriated.

National taxes are considered to have been paid on the date of request.

The term "amount of erroneous payment" refers to the amount of tax paid or collected in the absence of a duty return or disposition of imposition, or even if such tax return or disposition is void on a deferred basis, and the term "amount of excess payment" refers to the amount of tax reduced in whole or in part as a result of revocation or decision of reduction, although such return or disposition of imposition is not void on a deferred basis. Therefore, in cases of a taxpayer's claim for return of unjust enrichment, the amount of national tax refund claim is already determined at the time

in the case of a tax liability by revocation or rectification of a declaration or disposition; or

Additional effect shall occur specifically at the time of extinction (Supreme Court Decision 2008Da31768 Decided March 26, 2009).

see, e.g., Supreme Court Decision

(2) If the person with the right to the legal reserve of inheritance exercises his/her right to the legal reserve of inheritance, his/her violation

Since the gift or testamentary gift becomes retroactively null and void (see, e.g., Supreme Court Decision 2010Da42624, Mar. 14, 2013). In cases where the Plaintiffs who received the gift from a decedent’s gift return the property donated by the decedent’s gift to the right holder, the returned property value is deemed not to have existed from the beginning (general Rule 31-03 of the Inheritance Tax and Gift Tax Act). As seen earlier, the Plaintiffs returned the shares returned to the right holder of the secured portion of inheritance. As such, the shares returned to the Plaintiffs were deemed not to have existed from the beginning. Accordingly, the Plaintiffs may be entitled to receive gift tax because the shares returned to the Plaintiff were considered to have no gift from the beginning. However, the aforementioned grounds fall under the case where the original disposition of gift tax was invalid due to the defect of the invalidity of the gift tax as a matter of course, and the first declaration, determination, or correction of gift tax under Article 45-2(2)1 of the former Framework Act on National Taxes (hereinafter “former Framework Act”).

(3) Nevertheless, the plaintiffs filed a claim for correction of gift tax on May 201, when two months have much elapsed since the date when the court knew that the pertinent cause, which is the period for filing a claim for correction under Article 45-2 (2) 4 of the former Framework Act on National Taxes, occurred, and the court had much exceeded the period of two months since the completion of mediation or the final and conclusive judgment. Accordingly, the fact that the correction was rejected on the ground of the lapse of the period for filing a request for correction is as seen earlier, the disposition of gift tax imposed on the plaintiffs on the reserved portion returned shares is still valid, and there is no excess of gift tax on the plaintiffs.

C) Sub-determination

Ultimately, the inheritance tax notice of this case against the plaintiffs is lawful, and this part of the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, all of the plaintiffs' primary and conjunctive claims are dismissed. It is so decided as per Disposition.

1) A disposition of taxation ordered by the Commissioner of the National Tax Service upon a request by the Chairman of the Board of Audit and Inspection under Article 33 of the Board of Audit and Inspection Act, which is excluded from the objection under general Rule 55-4-21 of the Framework Act on National Taxes, is not subject to objection, but subject to a request for review, as a special order

2) While the Defendant merely deals with the issue of the disposition of inheritance tax in this case, the Defendant’s main defense was made prior to adding the Plaintiffs’ primary purport of the claim, and the Plaintiffs’ primary and conjunctive claim specifically identified only the subject of revocation by asserting the same illegal cause as to the assessment and collection of inheritance tax and the disposition of collection against co-inheritors in substance. Thus, the aforementioned defense ground is related to the additional primary claim part.

3) In imposing and assessing inheritance tax on co-inheritors when the tax authority entered the total amount of tax payable in the notice of tax payment and the grounds for calculation thereof, and served on co-inheritors along with the ratio of possession of each co-inheritors’ inherited property and the detailed statement of notified tax amount by joint-inheritors, in which each co-inheritors calculated according to the ratio of the amount of tax to be paid, the tax amount to be paid by the co-inheritors becomes effective as a notice of tax assessment that specifically determines the duty to pay (see Supreme Court Decision 96Nu68, Sept. 24, 1996). As such, the amount of tax paid by each inheritor listed in the notice of notice of notice of tax payment by each inheritor of this case shall be deemed as an inheritance tax assessment and assessment of the Plaintiffs. However, in this case, in accordance with the Plaintiffs’ purport, the determination of illegality is made as follows.