In light of the empirical rule, if the deceased fails to disclose the fact that he/she holds a claim for provisional collection, he/she may not add it to inherited property.

As to the portion not verified among the amount stated as anti-restricted to the deceased in the president of the Adm-gu, it is insufficient to view such fact as presumed in light of the empirical rule, solely on the ground that the Plaintiffs failed to submit explanatory materials as to the repayment of the deceased’s claims at the time of the death.

Article 7 of the Inheritance Tax and Gift Tax Act (Scope of Inherited Property)

2015Guhap5381 Revocation of Disposition of Levying Inheritance Tax

Maximum 00 et al.

Samsung Head of Samsung Tax Office

June 19, 2015

July 24, 2015

1. The disposition of imposition of KRW 89,663,850, which the Defendant rendered to the Plaintiffs on March 10, 2014, is revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On January 24, 1995, Nonparty 1 (hereinafter referred to as “the deceased”) jointly established and managed the deceased Kimx and the 00 water production company, an unlisted corporation (hereinafter referred to as “00 water production”). On January 24, 2012, Nonparty 1 (the deceased’s wife, and Plaintiff KimA, and Plaintiff KimB were children) jointly succeeded to the deceased.

B. On July 31, 2012, Plaintiff 00 reported and paid inheritance tax to the Defendant with the amount of KRW 3,104,854,625, and the amount of inheritance tax as KRW 185,789,780 (hereinafter “the first return and payment”).

C. On August 1, 2013, the Defendant started an inheritance tax investigation on the Plaintiffs (the scheduled period: from August 1, 2013 to November 7, 2013).

D. In the course of the investigation, the Defendant notified the Plaintiffs of supporting materials on their repayment regarding the portion of KRW 398 million out of the amount written by 00 water delivery to the Deceased’s head of the provisional deposit account (the stated details are as shown in Appendix 1, attached hereto; hereinafter “head of the provisional deposit account”). The Defendant notified the Plaintiffs of supporting materials on the fact that the repayment of the above part was made.

E. On October 31, 2013, in order to secure the above supporting materials, the Plaintiffs filed an application with the Defendant for the suspension of the inheritance tax investigation from November 1, 2013 to November 22, 2013, and the Defendant received the aforementioned application, but failed to discover supporting materials for repayment of the said part until the investigation is completed.

F. On March 14, 2014, the Defendant: (a) deemed that the Deceased held the foregoing claim of KRW 398 million with respect to the KRW 00,000 as at the time of his death (hereinafter “the instant claim for the provisional deposit”); (b) on the premise that the instant claim for the provisional deposit was included in the deceased’s inherited property; (c) on the other hand, on the premise that the instant claim for the provisional deposit was held by the Deceased, the value of the shares held by the Deceased at the time of his death was lower than that assessed in the initial report; and (d) corrected the parts to determine that there was an error in the initial report details; (b) subsequently, the Defendant issued a revised and notified the Plaintiffs of KRW 89,63,850 in addition to the initial inheritance tax paid as joint and several taxpayers (hereinafter “the instant disposition”).

G. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 9, 2014, but was dismissed on November 7, 2014.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 7, Eul evidence 1 to 7, 10 to 12

Each entry, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

At the time of the death of the deceased, the Defendant included the above claim for provisional collection in calculating the value of the inherited property on the premise that the deceased possessed the claim for provisional collection against 00 physical assets at the time of the death. However, it cannot be deemed that the deceased possessed the above claim for provisional collection, and therefore, the disposition of this case is erroneous in calculating the value of the inherited property.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Generally, since the tax authority bears the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of a tax imposition disposition, if the tax authority fails to directly prove the facts of taxation requirements or to state the presumed facts of taxation requirements in light of the empirical rule in the course of a specific lawsuit, the pertinent taxation disposition is an illegal disposition that fails to meet the taxation requirements (see, e.g., Supreme Court Decisions 2010Du20805, Mar. 28, 2013; 2013Du24495, Feb. 12, 2015).

In this case, the plaintiffs asserted that the deceased had the claim for the provisional collection of 00 water at the time of death. Thus, if the defendant directly proves that the deceased had the claim for the provisional collection of 00 water, or fails to state the fact that the deceased had the claim for the provisional collection of 10 water, in light of the empirical rule, the disposition of this case is unlawful.

Therefore, the following circumstances can be acknowledged by comprehensively taking account of the facts acknowledged earlier, Gap evidence Nos. 3, 6, 7, and Eul evidence No. 6’s respective arguments. In other words, the deceased was the actual co-manager of 00, and the shareholders were composed of relatives of the deceased and operated together with their family members. In light of the relationship between the deceased and 00, even if 00 water delivery was directly against the deceased, it may not be objectively proven evidence as to the deceased’s claim for reimbursement, and it is difficult to view that the above amount of money was less than 00,000 won as a result of a financial transaction between the management and 00,000 won, and it is difficult for the Plaintiffs to view that the above amount of money was less than 0,000 won as a result of a 10-year financial transaction, and it is also difficult for the Plaintiffs to have been recorded as a result of the reduction of 100,000 won worth of the deceased’s money deposited at any time between the management and 10-year.

Meanwhile, the determination of legality of a disposition in a lawsuit seeking revocation of a tax disposition is based on whether it exceeds a legitimate amount of tax. The parties concerned may submit arguments and materials supporting the objective tax base and tax amount until the closing of argument in the fact-finding court. When calculating a legitimate amount of tax to be lawful by such materials, only the portion exceeding the legitimate amount of tax should be revoked. However, even if the tax authority did not assert or prove it, it does not have a duty to calculate the amount of tax to be legally imposed by actively examining evidence or urging the tax authority to prove it, and if the legitimate amount of tax to be imposed is not calculated lawfully, the entire amount of the taxation disposition should be revoked (see, e.g., Supreme Court Decisions 2005Du5666, Sept. 7, 2007; 2013Du3641, Jun. 27, 2013; 2013; 800 won of the inheritance tax amount, other than the original amount of the inherited property of the deceased, can not be imposed lawfully by the Plaintiffs in light of the above amount of tax base amount of 800.

3. Conclusion

Therefore, the plaintiffs' claims are reasonable, and this decision is delivered with the assent of all participating Justices.

section 3.

00The statement of the president of the Bank of Home Products

Temporary change balance

January 2, 2007 05,000,0015,000,000

April 23, 2007 10,000,005,000,000

April 30, 2000,0015,000,000 on deposit on April 30, 2007

May 10, 2007 10,000,005,000,000

May 29, 2007 10,000,000-5,000,000

June 26, 2007 No. 10,000,000 (less indicated)

July 11, 2007 deposited 30,000,0015,000,000

on July 20, 2007 DM 60,000,000 (no indication is made)

July 20, 2007 No. 10,000,000-5,000,000

70,000,0015,000,000 on August 6, 2007

October 25, 2007, 15,000

Deposit on December 28, 2007 143,400,000 (not indicated)

December 28, 2007 deposited on December 28, 2004 44,600,000,000

December 31, 2007 188,000,000

March 5, 2008 30,000,0030,000,000

March 6, 2008 No. 30,000,000

October 10, 2008 deposited on October 135, 2000,00135,000,000

October 15, 2008 79,000,0056,000,000

October 31, 2008, 56,000

January 20, 2000,0020,000,000 on deposit on January 20, 2009

August 7, 2009 20,000,000 (less indicated)

August 7, 2009 6,000,006,000,000

August 18, 2009 20,000,0026,000,000

August 27, 2009 20,000,006,000,000

December 11, 2009 34,000,0040,000,000

December 14, 2009 34,000,006,000,000

December 30, 2009 No. 6,000,000

January 8, 2010 200,000,0020,000,000

January 26, 2010 10,000,00190,000,000

February 4, 2010 30,000,00220,000,000

February 18, 2010 5,000,00215,000,000

February 26, 2010 25,000,0195,000,000

March 30, 2010 100,000,0095,000,000

April 28, 2010 10,000,0085,000,000

May 3, 2010 20,000,0065,000,000

May 4, 2010 7,000,0072,000,000

May 11, 2010 3,000,0075,000,000

June 1, 2010 80,000,0015,000,000

June 14, 2010 45,000,0020,000,000

July 19, 2010 16,500,00216,500,000

July 28, 2010 6,500,00210,000,000

August 11, 2010 10,000,0020,000,000

August 16, 2010 5,000,0195,000,000

August 25, 2010 5,000,00190,000,000

August 27, 2010 5,000,0195,000,000

September 16, 2010 5,000,00180,000,000

December 27, 2010 180,000

January 25, 201 15,000,0015,000,000

February 18, 201 5,000,0010,000,000

February 25, 2011 10,000

April 14, 201 55,000,005,000,000

April 15, 201 55,000,000

August 4, 201 12,000,0012,000,000

August 5, 2011 12,000,000

Related Acts and subordinate statutes

Inheritance Tax and Gift Tax Act

Article 7 (Scope of Inherited Property)

(1) The inherited property provided for in Article 1 shall include the property belonging to the ancestor and all articles having de facto or de facto value which can be converted into money and all de facto or de facto rights having property value.

(2) Among inherited property pursuant to paragraph (1), those exclusively belonging to the deceased's life that cease to exist due to the death of the deceased shall be excluded.