Whether the provision of Article 18(1) of the former Inheritance Tax Act that prescribes the joint and several liability for payment of inheritance tax is unconstitutional (negative)

Considering the legislative purport of Article 18(1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993), the nature and limit of liability for joint and several payment, etc., which provides for the method of taxation of inheritance tax in our country, and the joint and several liability for inheritance tax, even though the above provision is practically expanding the liability for tax payment to a person who does not have the own liability for tax payment for the purpose of securing tax collection, it is difficult to say that the joint and several liability of co-inheritors is in violation of the constitutional right to equality, the principle of guaranteeing property rights, and the principle of proportionality to be observed in

[1] Article 18(1) and (2) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) (see Article 3(1) of the current Inheritance Tax and Gift Tax Act), Articles 11, 23, and 37(2) of the Constitution of the Republic of Korea

Lee & Lee (Law Firm Kim, Attorneys Lee Sung-jin et al., Counsel for defendant-appellant)

Head of Geumcheon Tax Office

1. The plaintiff's main claim shall be dismissed;

2. The plaintiff's conjunctive claim is dismissed.

3. Litigation costs shall be borne by the plaintiff.

1. State-oriented claims: On August 3, 1999, the part that exceeds KRW 24,407,660 of the disposition of imposition of inheritance tax of KRW 86,860,015 that the Defendant made to the Plaintiff on August 3, 199 is revoked.

2. Preliminary claims: The portion that exceeds 24,407,660 won of the collection disposition of KRW 86,860,015 against the Plaintiff on August 3, 199 by the Defendant shall be revoked.

1. Basic facts

【No. 1-5 Evidence No. 1-5, Evidence No. 1-5, All purports of oral argument】

(a) When the purification angle died on July 26, 1993, the plaintiff and the son, the son, the son, and the son, who were his children, jointly inherited each real estate listed in the separate sheet (hereinafter referred to as "the inherited property of this case").

(b)Afterward, the plaintiff, Lee Jong-sung, Lee Jong-sung, Lee Jong-sung, and Lee Jong-sung stated in No. 1 to 4 of the annexed list shall consult on dividing the inherited property of this case into the content that the plaintiff acquires, and each real estate listed in No. 5 to No. 7 of the same list shall be divided into the inherited property of this case, and around July 1996, the registration of ownership transfer was completed due to the above consultation division, but did not report the inheritance tax.

C. On August 3, 1999, the Defendant calculated a tax amount of KRW 86,860,015 (including additional taxes) with the value of inherited property of KRW 445,85,59,59. The Defendant issued a tax notice to each of the co-inheritors with each of the co-inheritors as the taxpayer. The instant tax notice (Evidence 2-3) issued to the Plaintiff issued to the Plaintiff is the total tax amount to be paid for each of the following periods after the due date, payment period, and payment period, and the basis for calculation thereof, including the year of taxation reversion, the total tax base and tax rate, the tax amount, the additional tax amount, and the deductible tax amount to be paid by the heir or testamentary donee attached to each of the above tax notice, and the inheritance tax amount to be paid by the heir or testamentary donee, the relationship between the Plaintiff and the deceased, the name and resident registration number of the Plaintiff, the name of each of the co-inheritors, the possession ratio of inherited property (the inheritance tax amount of KRW 75,2040,61).

2. Whether the lawsuit against the main claim is legitimate;

On August 3, 199, the Plaintiff imposed an inheritance tax of KRW 86,860,015 on the Plaintiff on August 3, 199, and sought revocation of the portion exceeding KRW 24,407,660 according to its inherited property possession ratio.

However, according to the above facts of recognition, the defendant's disposition that the plaintiff made on August 3, 199 and the accompanying documents shall be imposed on the plaintiff according to the plaintiff's disposition of 24,407,660 won of inheritance tax and the collection disposition of 86,860,015 won of inheritance tax according to the plaintiff's ratio of possession of inherited property. The above disposition of imposing inheritance tax of 86,860,015 won exceeding the above 24,407,660 won shall not be made (see Supreme Court Decision 93Nu10316, Dec. 21, 1993, etc.). Thus, there is no lawsuit concerning the main claim seeking revocation, and it is unlawful as it is subject to an administrative disposition for which

3. Appropriateness of the preliminary claim.

A. The plaintiff's assertion

In accordance with Article 18(1) main text of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993; hereinafter referred to as the "former Act"), the Defendant issued a disposition to collect total amount of KRW 86,860,015 from the Plaintiff pursuant to the provision of Article 18(1) of the former Inheritance Tax Act (hereinafter referred to as the "instant provision"), which provides for joint and several liability for payment of inheritance tax, but the provision is in violation of the Constitution and is null and void for the following reasons. Thus, the Defendant asserts that the portion exceeding KRW 24,407,660 imposed according to the Plaintiff'

(1) Since taxable objects of the inheritance tax are either "income acquired by the inheritor by reason of the inheritance" or "property transferred from the inheritor to the inheritor by reason of the inheritance", the inheritor is liable for joint and several tax liability for the portion exceeding the portion of his/her share of inheritance to the co-inheritors, in spite of no reason to assume inheritance tax as to the non-existent income or the inherited property not actually transferred, the above provision imposes a tax on the co-inheritors, which is ultimately non-existent, and the tax burden violates the "the principle of tax equity", which is the basic principle of the tax law that should correspond to the ability to pay taxes, thereby infringing on the property rights and equality rights of the co-inheritors.

(2) The purpose of this case is to efficiently collect inheritance tax, and it is against the principle of proportionality to impose joint and several tax liability on co-inheritors to achieve such objective is that all risks associated with the collection of inheritance tax are transferred only to some co-inheritors for the convenience of the collection of inheritance tax and the increase of tax revenues, and it cannot be recognized as an appropriate means, as well as to be contrary to the principle of balance of legal interests or at least the degree of damage.

(b) Markets:

(1) Inheritance tax taxation method and legislative purport of the instant provision

The method of taxation of inheritance tax is largely divided into the method of miscarriage tax and the method of miscarriage acquisition tax. The former is a method of imposing taxes on the entire heritage of the decedent in accordance with its amount on the basis of the decedent, and the latter is a method of imposing taxes on the property acquired by the decedent based on the person who acquired the heritage. Therefore, when the method of miscarriage tax is taken, the object of taxation of inheritance tax can be considered as the "free transfer of the property by inheritance", while the object of taxation in case of the method of miscarriage acquisition tax is the property acquired by the heir from the decedent by the commencement of inheritance.

Article 2 (1) of the former Act provides that "if an inheritee has a domicile in Korea, all of his/her inherited property (including property bequeathed by the inheritee and property becoming effective due to the death of the inheritee; hereinafter the same shall apply)," and Article 2 (2) of the former Act provides that "if an inheritee has no address in Korea, only the inherited property in Korea shall be levied on the inherited property." Article 4 (1) of the former Act provides that the taxable value of inherited property shall be calculated based on the value of the inherited property, and the amount of public charges, etc. shall be calculated by subtracting the value of the inherited property from the value of the inherited property added to the value of the inherited property within a certain period prior to the commencement of the inheritance. In the case of joint inheritance, the structure of calculating the amount of tax by applying the accumulated tax rate exceeding the total amount of inherited property before

If the above taxation method of miscarriage tax is logically implemented, the inheritance tax to be paid by each heir is the tax to be paid for the inheritance of the inheritee, and our Civil Act provides that the inherited property belongs to the co-ownership of the inheritor. Article 25(1) of the Framework Act on National Taxes provides that the national taxes, surcharges, and expenses for disposition on default related to the jointly-owned property, the joint-owned property, the joint-owned property, or the property belonging to the joint-owned business shall be jointly and severally liable to pay the total amount of the inherited property. Thus, the co-inheritors

However, Article 18(1) of the former Act provides that "any inheritor or testamentary donee (including a donee of a gift becoming effective due to the death of an ancestor; hereinafter the same shall apply) shall be jointly and severally liable to pay inheritance tax according to the ratio of possession of the property each has received or is to receive among inherited property (including the donated property added to inherited property pursuant to Article 4, which is received by an inheritor or testamentary donee; hereinafter the same shall apply)", and Article 18(2) of the former Act provides that "each co-inheritors' liability for joint and several liability for inheritance tax under Article 18(1) of the former Act shall be limited to the property he has received or to receive." Thus, each co-inheritors is liable to jointly and severally pay the amount of tax allocated according to his share of inheritance. However, each co-inheritors is liable to pay the total amount of tax within the limit of the

The above provisions on joint and several payments exist in the Japan's Inheritance Tax Law adopting the so-called statutory inheritance acquisition tax method, which imposes tax on each inheritor in proportion to the actual share of the co-inheritors's inheritance, after calculating the tax amount on the basis of the statutory share of the co-inheritors's inheritance and adding it to the aggregate, and then imposes the aggregate tax amount on each inheritor in proportion to their actual share of the inheritance. This is not in harmony with the principle of the ability to pay taxes when maintaining the inheritance tax system, or the principle of fair taxation. In light of the above, each co-inheritors's unique tax liability is limited to the tax amount according to their share of the inheritance ratio, while the co-inheritors are jointly and severally liable for tax payment for the purpose of securing the tax collection, but it is deemed that there is a suspension of joint and several liability for tax payment within the limit of the property

The attitude of the above former Act is continuing even after the name of the law was changed from the Inheritance Tax Act to the Inheritance Tax and Gift Tax Act by Act No. 5193 on December 30, 1996, and the system and contents thereof have been completely reorganized.

(2) Whether the instant provision violates the Constitution

According to the above review, since taxable object of inheritance is "free transfer of property due to the death of the inheritee", the plaintiff's assertion that the joint and several tax liability of this case under the premise that the taxable object of inheritance is "property acquired by the inheritor" is taxable on the non-existent taxable object is without merit.

In addition, considering the above taxation method of inheritance tax in our country, the legislative purport of the provision of this case, the nature and limit of joint and several liability, etc., even though the provision of this case is practically expanding the liability to pay taxes to a person who does not have the own liability to pay taxes with the intention of securing tax collection, it is difficult to say that the joint and several liability of co-inheritors is in violation of the constitutional equality right, the principle of property right guarantee, and the principle of proportionality to be observed in infringement of fundamental rights.

(3) Sub-decisions

Therefore, there is no reason to believe that the provision of this case is unconstitutional.

3. Conclusion

Therefore, the plaintiff's main claim is unlawful and thus, it is dismissed. The conjunctive claim is dismissed. It is so decided as per Disposition.

Judges Kimchi (Presiding Judge) Lee Jae-gion Line