2014west1423 ( October 30, 2014)

A deceased who has no family living together in Korea shall be a non-resident at the time the inheritance commences.

The mother of the deceased cannot be seen as a non-resident because it is difficult to view it as a family member living together with the deceased as at the time of commencing the inheritance. Even if the mother of the deceased living together, it is difficult to regard it as a non-resident, even if the mother of the deceased had maintained most property in Korea in light of various circumstances, it is difficult to view it as a "where

Article 1 of the Inheritance Tax and Gift Tax Act

Article 2 of the Enforcement Decree of the Income Tax Act and Determination of Domicile

2015Guhap50368 Revocation of Disposition of Levying Inheritance Tax

Yellow AA

Head of the tax office;

April 17, 2015

May 8, 2015

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 00,000,000 against the Plaintiff on January 1, 2014 is revoked.

1. Details of the disposition;

A. On October 31, 2012, the Plaintiff reported and paid KRW 00,000 of inheritance tax by applying inheritance deduction on the premise that the Plaintiff is a husband of the deceased Lee ○○ (hereinafter referred to as “the deceased”) who died on April 14, 2012.

B. From June 28, 2013 to October 4, 2013, the Defendant conducted an investigation related to inheritance on the deceased, and on January 1, 2014, the Defendant excluded the application of inheritance deduction on the ground that the deceased was a permanent resident in New Zealand at the time of commencing the inheritance (as of April 14, 2012), and determined and notified the inheritance tax amount of KRW 00,000,000 (including KRW 00,00,000) (hereinafter referred to as “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on March 3, 2014, but was dismissed on October 30, 2014.

Facts without any dispute, Gap's 1, 2, Eul's 1 and 2, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

As of December 5, 2004, "the deceased and the plaintiff were to move to New Zealand for the purpose of temporary residence until ○○○○○ Man apartment located in ○○-dong, ○○○○○○○○○○ (hereinafter referred to as "the apartment of this case"), and the deceased did not live in the rental house that was not a self-employed person, and did not engage in all income activities including employment. The deceased, who had maintained most assets including real estate in Korea, provided domestic insurance and renewed the driver's license. In addition, the deceased's disposal of the apartment of this case to ○○○○○○○○○ Man apartment apartment located in ○○-dong, ○○○○○ (hereinafter referred to as "the apartment of this case") without compensation, for about 10 years to 20 years old, for the purpose of supporting the mother who was born with urology, etc. and for the long time of living in New Zealand, it was unlawful in light of the former Enforcement Decree of the Income Tax Act's 20 years old and 25 years old residential property.

It is as shown in the attached Form.

(c) Fact of recognition;

1) On December 5, 2004, the Deceased acquired the permanent residence from New Zealand for the purpose of education of YellowB, along with the Plaintiff and YellowB (SP) on December 5, 2004. The deceased’s domestic resident registration was already cancelled due to locally obtained emigration on September 22, 2004. After departure from the Republic of Korea on December 5, 2004, the details of stay in the Republic of Korea of the Deceased, the Plaintiff, and YellowB are as follows:

(1) The current status of the stay days of the decedent's family

(unit: Day)

Year

Family

205

206

2007

208

209

2010

2011

4, 2012

(Commencement of Inheritance)

-

-

-

15

16

17

-

6

-

-

-

166

332

23

-

6

YellowB

(Supplementary children of an inheritee)

-

-

-

15

16

17

-

6

2) The deceased’s family member was residing in the leased house continuously from the date of departure to the date of commencing the inheritance, and the deceased, who was a professional resident, was dedicated to treating and fostering YB, who was suffering from severe Atopy infection, and the Plaintiff mainly led to income activities by translation upon the request of the domestic publishing company. At the time of commencing the inheritance, the deceased and the Plaintiff’s property owned at home and abroad are as follows:

A) The Deceased

Classification

Location of Property

acquisition

Grounds

acquisition

Yearly:

Value

( million won)

Jinay

Korea

Real estate

○○○-si ○○○-dong ○○ apartment 00,000 00 square meters (76.79 square meters)

Sales

6, 198

00

Deposit for lease on a deposit

00 million only

Korea

Real estate

○○○-si ○○○○○-dong ○○○ apartment 000 000 000 square meters (70.73 square meters)

Sales

November 2001

00

Deposit for lease on a deposit

00 million only

Korea

Deposit

○ Bank 0000000000000

10 accounts

00

Report as Non-resident

Overseas

Deposit

New Zealand ○○○○ Bank 0000000000 Other three accounts

00

1/2 of the common account of married couple

Insurance proceeds

○ Life Insurance

00

* The value of real estate is the value of inheritance tax reported.

B) Plaintiff

Classification

Location of Property

acquisition

Grounds

acquisition

Yearly:

Value

( million won)

Jinay

Korea

Real estate

○○○-si ○○○○-dong 000-0 ○○○ apartment 000 (83.83 square meters)

Donations

6, 203

00

donor mother

Matern Residence

Korea

Real estate

○○○-gun ○○○ 000 Forest land 147,174 square meters

Donations

7, 2003

00

donor mother

Overseas

Deposit

New Zealand ○○○○ Bank 0000000000 Other three accounts

00

1/2 of the common account of married couple

* The value of real estate is the standard market price for inheritance.

3) Although the Deceased’s mother KimA (S.O. 0, 1929) did not have a child other than the Deceased, there was no other family member living together with the Deceased except for the fact that the deceased and his resident registration was cancelled as the resident registration of the deceased from September 15, 2004 to September 22, 2004. From January 2001 to June 2009, the deceased operated a singing room and reported the amount of 24 million to 24 million to 34 million won as the amount of income from 2005 to 2008.

4) From June 2, 2003 to August 20, 2013, KimA consistently received medical treatment from ○○○○○○○○○○○○○○○○○○○○○○-dong to receive an emergency treatment at ○ University Hospital on January 31, 201. After the death of the deceased, ○○○○○○ University Hospital was diagnosed with a fluoral cerebral cerebral typhism and a cerebral typhism on May 3, 2012, and was hospitalized for three days at ○○ University Hospital on July 22, 2012.

5) On April 9, 2012, the Deceased returned to the Republic of Korea with the Plaintiff and YellowB and received spin discs from ○○○ Hospital and ○○○ Hospital on April 12, 2012. On April 13, 2012, the Deceased reported the instant apartment, the domicile of which was KimA’s domicile, as well as the issuance of ○○ Card at ○○ Bank.

6) As the Deceased died on April 14, 2012, the Plaintiff paid KRW 176,80,000 on April 28, 2012, and had KimA enter the ○○○○○○○○○○○○○○○○○○○○○○, ○○○○○○, and left New Zealand again on April 30, 2012, and on five occasions from May 2, 2012 to January 3, 2014, the Plaintiff paid KRW 26,00,000,000 to Dong Kim○○○○○○○, by remitting KimB, to pay the management expenses.

7) On January 20, 2014, YellowB entered New Zealand○○○ University, and thereafter, on March 26, 2014, the Plaintiff returned to the Republic of Korea and applied for registration of a person living together with the said ○○○○○○○○○○○○ University on July 5, 2014.

Facts without any dispute arising in recognition, described in Gap's 2, 3, 9, 12, 13, 16 through 18, 27 through 29, and the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

1) The former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter “former Inheritance Tax and Gift Tax Act”) recognizes the spouse’s deduction (Article 18(1)), and other personal deductions (Article 19), other than the basic deduction (Article 20(1)1), and the financial property inheritance deduction (Article 22(1). Since the instant disposition is premised on the premise that the deceased does not fall under the “resident” as prescribed by relevant Acts and subordinate statutes, such as the former Inheritance Tax and Gift Tax Act, where the death of a resident or a nonresident is commenced (Article 18(1)), the issue is whether the deceased can be deemed a resident as prescribed by Article 1(1)1 of the former Inheritance Tax and Gift Tax Act.

2) Under Article 1(1)1 of the former Inheritance Tax and Gift Tax Act, where a person who has a domicile in the Republic of Korea or has a domicile in the Republic of Korea for not less than one year (hereinafter referred to as a "resident") dies, inheritance tax shall be imposed on all inherited property of the resident. Article 1(2) of the same Act provides that matters necessary for the definition, etc. of the resident shall be prescribed by the Presidential Decree. Article 1(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act delegated by the above provision provides that the domicile and the residence under Article 1 of the same Act shall be governed by the provisions of Articles 2 and 4(1) and (2) of the Enforcement Decree of the Income Tax Act. Article 2 of the former Enforcement Decree of the Income Tax Act provides that "when a person has a domicile in the Republic of Korea or a person who has a domicile in the Republic of Korea for not less than one year, his domicile shall be determined based on objective facts of his living relationship, such as the existence of a family living together in the Republic of Korea and a family residing in Korea."

3) As to the instant case, the health team and the deceased were residing in the Republic of Korea at the time of commencing the inheritance, and the facts that they had no clear occupation are as seen earlier, it should be examined whether an individual living in the Republic of Korea has a family living together with a family living in Korea under Article 2 (3) 2 of the former Enforcement Decree of the Income Tax Act, and whether it constitutes "when it is deemed that an individual living in Korea for not less than one year is residing in Korea

A) In light of the following circumstances, in recognition of the overall purport of Gap evidence Nos. 9 and 19 as seen earlier, it is difficult to view that KimA was a family member living together with the deceased at the time of commencing the inheritance, and there was no other family living together in the Republic of Korea. It is reasonable to deem that the deceased, who did not meet the minimum requirements for recognition as a resident, was a non-resident at the time of commencing the inheritance.

① Around September 2004, in addition to the fact that the deceased was living together with the KimA on his resident registration for about one week prior to his departure from New Zealand, the deceased did not live with the KimA on or before April 9, 2012, and the "family living together with his livelihood" refers to the unit of living in the same daily life, which means the unit of living in the same daily life (see Supreme Court Decision 88Nu3826, May 23, 1989). There is no evidence to support the situation that the deceased or the plaintiff supported the KimA by means of economic support, such as providing a regular living expense to the deceased or the plaintiff prior to his commencing date of his inheritance, and instead, KimA, despite its age, operated a singing room independently from 201 to 2009, was engaged in economic activities, and the apartment house in the name of the plaintiff living in the name of the plaintiff seems to have been donated to the plaintiff.

② From 74 years of age and 2003, KimA had already been suffering from urine disease, and on January 31, 201, it appears that the deceased had not been in a health condition enough to receive emergency medical treatment at 81 years of age. However, the deceased did not take any measures against this, and on April 9, 2012, he returned to the Republic of Korea with a family member who had to go beyond one year thereafter. After the deceased’s death, the deceased’s body becomes worse, and the urology of urology has aggravated, and it was difficult for ○○○ to recover the body remaining in ○○○ and to report son’s health to the deceased for a long time. Considering that the deceased’s e-mail had no possibility to temporarily grow for the purpose of returning to 201, the Plaintiff’s e-mail cannot be ruled out.

③ Although it was true that the deceased was a father’s maternal father of KimA, the Dong KimB of KimA was in Korea, and it is difficult to conclude that the husband’s new husband, who was issued on April 23, 2012, without the “Death” under Article 21(6) of the Rules on the Registration, etc. of Family Relationship under the Family Relationship Certificate (Evidence A No. 19) issued on April 23, 2012, had been living at the time of the commencement of the inheritance, and there is no person who cares for KimA.

④ The Plaintiff, at his own expense, occupied KimA at the ○○○○○○○○○, and living together with the said facilities, was irrelevant to whether or not KimA had a family living together with the deceased at the time of commencing the inheritance, and the Plaintiff returned from the university on March 26, 2014, and filed an application for registration of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on July 5, 2014 when three months elapsed since the date of the instant disposition, which was later later than March 3, 2014, filed by the Plaintiff with the Tax Tribunal.

B) Even if KimA’s family members living together with the deceased at the time of commencing the inheritance, the following circumstances are acknowledged by adding the overall purport of the arguments to the facts acknowledged earlier, i.e.,, the deceased’s life to New Zealand for a period of seven years from the date of departure on December 5, 2004, to April 14, 2012, which was the date of commencing the inheritance. The number of days during which the deceased’s husband was staying in Korea was 54 days, and the number of days during which the deceased’s husband was her husband was her husband, and the Plaintiff’s husband was her husband was her husband at the time of leaving Korea for about one year from 2008 to 209, and most of the deceased’s lives were her permanent residence in New Zealand. In light of the above circumstances, it is difficult to view that the Plaintiff’s living base was her temporary residence in New Zealand for the purpose of supporting Kim A for a long period of time, and it was difficult to view that the Plaintiff had not been her living in Korea.

4) Therefore, the instant disposition based on the premise that the deceased constitutes a non-resident is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.