The burden of proving the property not disposed of prior to the commencement of the inheritance shall be proved.

Where the place of use of the proceeds from the transfer of real estate is unclear within one year before the commencement of inheritance, unless it is proved that the proceeds have been inherited in cash, the proceeds from the transfer of real estate shall not be considered as "property acquired by inheritance" unless it is proved that they were inherited in cash.

The contents of the decision shall be the same as attached.

1. The part of the Defendant’s disposition imposing inheritance tax and defense tax on the Plaintiffs as of April 20, 1995, which exceeds the amount indicated in the item column of legitimate tax amount in the same list of inheritance tax and defense tax, shall be revoked. 2. The remaining claims of the Plaintiffs are dismissed on April 20, 1995. The 19 of them shall be borne by the Plaintiffs, and the remainder shall be borne by the Defendant, respectively.

1. The process of the instant disposition

The following facts may be acknowledged if there is no dispute between the parties, or if Eul evidence Nos. 1-2, 2, 3, 2, 6, 7, 11, 12, 35-2, Eul evidence Nos. 1 through 17, 19-1, 2, 2- Eul evidence No. 21-2, 2- Eul evidence Nos. 22-1, 2, 2, 3, 29 through 33, 29-1, 34-2, 35-1, 2, and 35-2, and 35-3 are added to all arguments.

A. The plaintiffs' inheritance relationship

On June 14, 1990, Nonparty 8 died on June 14, 199, the number of Plaintiff Kim Kim-soo is the inheritor of Australia, Plaintiff Kim Kim-soo, Plaintiff Kim Kim-sung, and Plaintiff Kim-sung were three South Korea.

(b) Notice of payment of capital gains tax;

피고는 소외 김ㅇ근이 1987. 10. 5. 국세청장이 정하는 특정지역 내의 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대2l 420.4㎡, 주택 80.46㎡(이하 이 사건 부동산이라 한다)를 취득하였다가 1989. 8. 1. 이를 양도하였다고 하여, 구 소득세법(1994. 12. 22. 법률 제4803호로 전문 개정되기 전의 것, 이하 같다) 제60조, 구 소득세법시행령(1990. 5. 1. 대통령령 제12994호로 개정되기 전의 것, 이하 같다) 제115조 제1항 제1호 가목에 따라 배율방법에 의하여 평가한 기준시가에 의하여 과세표준액을 계산하고, 이 사건 부동산에 관한 양도소득세 185,712,230원 및 방위세 37,142,440원을 부과결정한 다음, 국세기본법 제24조 제1항, 제2항에 따라 원고들이 법정상속분 비율로 소외 망 김ㅇ근의 위 양도소득세 및 방위세 납세의무를 승계하였다고 하여, 1995. 4. 17. 원고들에게 별지 양도소득세 등 목록 납부고지세액란 기재 각 양도소득세 및 방위세의 납부고지(이하 이 사건 양도소득세 등 납부고지처분이라 한다)를 하였다.

(c) Disposition of imposition, including inheritance tax;

(1) a corrective disposition;

On April 20, 1995, the Defendant disposed of the real estate transfer proceeds within one year before Non-party Kim Kim-sik died shall be included in the taxable amount of inheritance taxes pursuant to Article 7-2(1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 30, 1990; hereinafter the same shall apply) and Article 3(3) of the former Enforcement Decree of Inheritance Tax Act (amended by Presidential Decree No. 12993, May 1, 1990; hereinafter the same shall apply), but it shall be included in the taxable amount of inheritance taxes pursuant to Article 9(1) of the former Inheritance Tax Act and Article 5(1)1(a) of the former Enforcement Decree of Inheritance Tax Act, and shall be 355,343,410 won (land 349,457,500 won + building 5,85,910 won) assessed as inherited property value, and shall be calculated based on the details of the decision of correction and the tax payment notice.

(2) re-revision disposition;

피고는 1995. 7. 20. 소외 망 김ㅇ근이 사망 이전에 ㅇㅇ대학교의과대학부속병원에서 입원치료를 받으면서 부담한 입원진료비 채무 11,104,414원 및 이 사건 부동산에 대한 양도소득세액 가운데 누락된 금원을 상속세과세가액에서 추가 공제한 다음 원고들에 대하여 별지 상속세 등 과세목록 재경정세액란 기재와 같이 상속세 및 방위세를 감액경정하였다.(이하 위와 같이 감액된 상속세, 방위세 부과처분을 이 사건 상속세 등 부과처분이라 한다)

2. Whether the disposition of imposition of inheritance tax, etc. of this case is legitimate

A. The parties' assertion

The Defendant asserts that the disposition of imposition of the instant inheritance tax, etc. is lawful on the grounds as seen above and the relevant statutes, and the Plaintiffs asserted that the disposition of imposition of the instant inheritance tax, etc. is unlawful on the following grounds.

(1) The real estate acquisition fund of this case is KRW 135,00,000 among them, and KRW 116,94,813 among them is borne by Non-party Choi-young, who is the husband of the non-party Kim Jong-tae, the non-party who was the plaintiff Kim-young (the husband of the plaintiff Kim-hwan), so the share of KRW 116,94,813/135,00,00 among the real estate of this case is limited to the fact that the non-party Kim-young was the title trust of the non-party Kim-young. The real estate transfer price of this case is used as the repayment of the debt incurred at the time of the acquisition of the real estate of this case, medical expenses, living expenses of the above deceased, and the donation of the above deceased as the actual wife of the above deceased, and the plaintiffs did not have any property to be inherited from the above deceased.

(2) Since the non-party Kim-young actually maintained the marital relationship with the non-party Song-sung, the defendant did not make a spouse deduction under Article 11(1)1 of the former Inheritance Tax Act.

B. Determination

(1) Facts

Gap evidence Nos. 6, 10, 11, and 12, evidence Nos. 23-1, 2, evidence Nos. 35-2, evidence Nos. 4, 7 through 17, evidence Nos. 19-1, 2, Eul evidence Nos. 21-2, evidence Nos. 21-2, Eul Nos. 22-1, 2, 2, 3, and Eul’s witness Nos. 24, and evidence Nos. 88, and evidence Nos. 1, 2, 2, 3, and 24 are included in the whole purport of the pleadings, the following facts may be acknowledged:

(A) On October 5, 1987, the non-party Kim-dong purchased the real estate of this case from Non-party Cho Jae-sik, but on August 1, 1989, sold it to the non-party right - the non-party right, and died on June 14, 1990.

(나) 이 사건 부동산 매도 당시 위 망인과 소외 권ㅇ혁은 이 사건 부동산 매매대금을 232,410,000원으로 하여 구 부동산등기법(1991. 12. 14. 법률 제4422호로 개정되기 전의 것) 제40조 제2항에 의한 검인계약서를 작성하였는데, 그 당시 구 상속세법시행령 제5조 제1항 후문, 제2항 제1호 가목에 의한 이 사건 부동산 평가액은 355,343,410원이었으며, 소외 권ㅇ혁은 1997. 2. 19. 이 사건 부동산을 소외 망 김ㅇ근으로부터 350,000,000원 내지 400,000,000원 선에서 매수하였다는 내용의 확인서를 작성하여 ㅇㅇ지방국세청 직원에게 우송하였다.

(C) Nonparty 14,755,544 out of the real estate transfer proceeds of this case used 11,104,414 won as the hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital hospital account for the repayment of the debt incurred by the real estate transfer proceeds of this case, and other property acquired with the above transfer proceeds was not verified.

(2) Relevant statutes

(A) The former Inheritance Tax Act

Article 7-2 (Inclusion in Taxable Value of Inheritance Taxes) (1) Where an ancestor disposes of inherited property within one year before the date inheritance commences, such amount shall exceed 50 million won, and where the purpose of use is not objectively clear, as prescribed by Presidential Decree, it shall be included in the taxable

Article 9 (Value of Appraisal of Inherited Property) (1) Value of inherited property shall be based on the current status as at the time of the commencement of the inheritance.

(b) Enforcement Decree of the former Inheritance Tax Act

(3) "Cases prescribed by Presidential Decree" in Article 7-2 (1) of the Act means the following cases:

1. Where the other party to a transaction who has paid money, etc. received by an ancestor to dispose of assets or debts is not verified due to the lack of transaction evidence;

4. Where the predecessor disposes of the property or bears obligations, and the other assets acquired by the money, etc. are not verified;

5. Where disbursement is not recognized in light of the status of the inheritee's occupation, sex, income, or property.

Article 5 (1) The value based on the current status as at the time of commencing the inheritance or the value as at the time of imposing the inheritance tax as prescribed in Article 9 of the Act, shall be based on the market price as at the time of the commencement of inheritance,

(2) The appraisal of tangible property (excluding securities) shall be made according to the following subparagraphs:

1. Assessment of land and buildings;

(a) In a specific area as determined by the Commissioner of the National Tax Service, the appraised value shall be determined;

(3) According to the above facts and relevant Acts and subordinate statutes, the real estate disposal amount of this case shall be at least 35,343,410 won, which is the value of the real estate at the time of the above disposition, assessed by the multiple method under Article 5 (2) 1 (a) of the former Enforcement Decree of the Inheritance Tax Act, and 329,483,452 won, which is clearly used, subtracting the above debt repayment amount of 14,75,544 won and the hospitalization treatment amount of 11,104,414 won, which are clearly used, shall be included in the taxable amount for calculating the inheritance tax for the plaintiffs. Accordingly, the inheritance tax and defense tax for the plaintiffs, such as the details of calculation of the inheritance tax and defense tax, shall be calculated in accordance with attached Form 16,808,631 won, defense tax taxes shall be 2,801,438 won, and the plaintiffs shall be jointly and severally liable to pay the inheritance tax and defense tax amount in the separate sheet, which is calculated according to their shares.

(4) The judgment on the plaintiffs' assertion that the transfer price of real estate in this case was used as debt repayment, medical expenses, living expenses, donations, etc. of the deceased Kim -, and that the plaintiffs did not have any property inherited from the deceased Kim -

(가) 갑 제11, 12호증, 갑 제17호증의 1, 2, 갑 제18호증의 1 내지 7, 갑 제19호증의 1 내지 7, 갑 제21호증의 1, 2, 갑 제22호증, 갑 제23호증의 1 내지 6의 각 기재에 의하면, 이 사건 부동산에 관하여 1988. 1. 18.자로 채무자 소외 최ㅇ영, 채권최고액 65,000,000원, 근저당권자 소외 주식회사 ㅇㅇ은행으로 된 근저당권설정등기와 채무자 소외 망 김ㅇ근, 채권최고액 26,000,000원, 근저당권자 위 은행으로 된 근저당권설정등기가 각 경료되고, 위 각 근저당권을 설정하고 대출받은 금원이 이 사건 부동산을 담보로 소외 조ㅇ화가 위 은행으로부터 대출받은 채무의 변제에 사용된 사실을 인정할 수 있으나, 위와 같은 사실과 갑 제20호증, 갑 제24 내지 33호증의 각 1, 2, 갑 제36 내지 44호증의 각 기재만으로는, 소외 최ㅇ영이 이 사건 부동산의 취득자금을 대부분 제공하여 실질적으로 이를 매수하였으며 그 취득자금 제공 비율에 따른 116,994,813/135,000,000 지분을 소외 망 김ㅇ근에게 명의신탁 하였다거나, 이 사건 부동산 양도대금을 위에서 인정한 14,755,544원 이외의 소외 최ㅇ영의 채무변제금으로 사용하여 이 사건 부동산 양도대금 중 원고들이 상속한 금원은 없다는 원고들의 주장을 인정하기에 부족하고, 위 주장에 부합하는 갑 제34호증의 기재와 증인 최ㅇ영의 일부 증언은, 갑 제36 내지 39호증, 을 제23, 24, 25, 28호증에 의하여 인정되는 다음과 같은 사실, 즉 소외 망 김ㅇ근은 1978. 9. 15. ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대 113.4㎡를 취득하였다가 1983. 6. 13. 양도하였고, 그 양도대금 등을 가지고 1984. 4. 20. ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 연립주택 ㅇ층 ㅇㅇ호를 취득하였다가 1989. 2. 23. 소외 송ㅇ연 앞으로 소유권이전등기를 경료해 주는 등 이 사건 부동산 외에도 부동산을 취득한 사실이 있는 반면, 소외 최ㅇ영은 1981년부터 1988년 사이에 전자제품판매상을 운영하면서 1981년도에 87,100원, 1986년도에 169,700원의 부가가치세를 납부한 이외에 별다른 납세실적이 없고, 1995. 8. 7. ㅇㅇ시 ㅇㅇ읍 ㅇㅇ리 ㅇㅇ번지 답 3,187㎡를 취득하기 이전에는 부동산을 취득한 바도 없는 사실에 비추어 믿기 어려우며, 달리 원고들의 위 주장사실을 인정할 증거가 없다.

(B) Each statement of No. 33-1, No. 2, and witness most evidence of the plaintiffs, consistent with the plaintiffs' assertion that Non-party Kim Jong-young or Ma Young-young donated KRW 40,00,000 out of the real estate transfer proceeds of this case to Non-party Song-chul, are hard to believe in light of the statements of No. 25, 26, and 27, and there is no other evidence to prove otherwise.

(C) No. 35-1 of the evidence No. 35-1 of the plaintiffs' assertion that the real estate transfer price of this case was used for medical expenses and living expenses other than the hospitalization and treatment expenses of Non-party Kim Jong-sik, which was recognized above, and some of the testimony of the witness Choi-young is difficult to believe that the date of use is not specified or the content of the testimony is not specific, or there is no other evidence to prove

(D) Therefore, the plaintiffs' assertion that there is no property inherited by the plaintiffs using the real estate transfer proceeds of this case as debt repayment, medical expenses, living expenses, or donations to non-party 8.

(5) Determination as to the plaintiffs' assertion that the non-party's spouse deduction should be made for the non-party's smoke

According to Article 11(1)1 of the former Inheritance Tax Act, where a spouse has a spouse at the time of commencing an inheritance, 40,000,000 won shall be deducted from the taxable value of the inheritee at the time of commencing an inheritance. However, it is reasonable to regard the spouse as a legal spouse. Therefore, the above argument by the Plaintiffs is without merit without further determination.

3. Whether a payment notice disposition of capital gains tax of this case is legitimate

A. The parties' assertion

The defendant asserts that the disposition of the payment notice of the transfer income tax of this case is legitimate on the grounds of the disposition as seen above and the relevant statutes, and the plaintiffs asserted that the payment notice disposition of the transfer income tax of this case is unlawful on the

(1) The head of the tax office having jurisdiction over the domicile must impose tax, and there is no right to impose tax on the plaintiff Kim -soo and Kim -

(2) The real estate acquisition fund of this case is KRW 135,00,000, and KRW 116,94,813 among them is borne by Nonparty L-young. As such, the share of KRW 116,94,813/135,00,00 among the real estate of this case is limited to the fact that Non-party G-J Kim was held under title trust by Non-party L-B, and the transfer price of the real estate of this case is used in full as the repayment of the debt incurred at the time of the acquisition of the real estate of this case, medical expenses, living expenses, and donations to Non-party B, who opened the above deceased, and therefore, the above plaintiffs did not own inherited property from the above deceased, and therefore, the obligation to pay capital gains tax of the deceased was not succeeded to the plaintiffs.

(3) The transfer income tax of this case, which was imposed on the basis of the standard market price, shall not exceed 125,00,000,000 won based on the actual transaction price, since the non-party Kim Jong-young and the non-party Choi Young-young acquired the real estate of this case in 135,00,000 won.

B. Determination

(1) Determination as to the plaintiffs' assertion

In full view of the provisions of Articles 9, 11, and 14 of the former Income Tax Act, and Articles 24(1) and 44 of the Framework Act on National Taxes, where a resident liable to pay income tax dies, the purpose of Article 11(1) and (4) of the former Income Tax Act is to determine the tax base and tax amount of income tax and to impose it upon the head of a tax office (or the director of a regional tax office) having jurisdiction over the place of tax payment (or the head of a regional tax office) who has jurisdiction over the place of tax payment, among the place where the relevant decedent, his/her heir or tax manager is located or his/her place of tax payment, in cases where a resident liable to pay income tax dies, the place in which his/her heir or tax manager reports to the Government, as prescribed by Presidential Decree, shall be the place of tax payment, and shall be construed as having the authority to impose

그런데 을 제4호증의 기재에 변론의 전취지를 더하여 보면, 소외 망 김ㅇ근이 이 사건 부동산을 양도하여 그에 대한 양도소득세의 납부의무가 성립할 당시 및 사망시 그의 주소지는 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지이었고, 원고들은 위 김ㅇ근이 사망한 후 구 소득세법 제11조 제1항의 규정에 따른 납세지 신고를 하지 아니한 사실을 인정할 수 있고 반증이 없는바, 이에 의하면 위 김ㅇ근의 이 사건 부동산 양도에 따른 양도소득세의 납세지는 위 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지이고, 따라서 이를 관할하는 피고가 이 사건 부동산 양도에 따른 양도소득세를 부과할 권한을 가지므로, 원고들의 위 주장은 이유가 없다.

(2) Determination as to the plaintiffs' assertion

(A) Article 7-2(1) of the former Inheritance Tax Act provides that if an ancestor disposes of inherited property or bears an obligation within one year before the commencement date of inheritance, the disposal proceeds or loan proceeds are likely to be reduced unfairly due to inheritance or donation in cash to his heir, and thus, in order to prevent this, the amount, of which use is objectively unclear, shall be included in the taxable value of inherited property by deeming that the heir inherited property in cash under certain conditions. Thus, even though it is included in the taxable value of inherited property pursuant to the above provision, it shall not be deemed that the property acquired by inheritance pursuant to Article 24(1) of the National Tax Standards Act and Article 11(1) of the Enforcement Decree of the same Act, unless it is proved that the disposal proceeds of inherited property actually inherited and included in the scope of the property acquired by the above inheritance (Supreme Court Decision 92Nu1230 delivered on October 23, 1992).

(B) Disposition and reversion of the instant real estate sale price

갑 제6, 11, 12호증, 갑 제35호증의 2, 을 제19호증의 1, 2, 을 제24호증의 각 기재와 증인 최ㅇ영의 일부 증언에 변론의 전취지를 더하여 보면, 소외 망 김ㅇ근은 이 사건 부동산을 양도할 무렵 이미 회복하기 어려울 정도로 병환이 깊어 이 사건 부동산 양도시로부터 약 10개월 후에 사망하였으며, 이 사건 부동산을 양도하기 약 6개월 전에는 앞서 본 바와 같이 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 소재 연립주택에 관하여 사실혼 관계에 있는 소외 송ㅇ연 앞으로 소유권이전등기를 경료해 준 사실, 소외 망 김ㅇ근에게는 이 사건 부동산과 위 ㅇㅇ동 소재 연립주택 외에는 다른 부동산이 없었던 사실을 각 인정할 수 있고, 반증이 없으며, 이 사건 부동산 양도 당시 구 상속세법시행령 제5조 제1항 후문, 제2항 제1호 가목에 의한 이 사건 부동산 평가액은 355,343,410원이었으며, 소외 권ㅇ혁은 1997. 2. 19. 이 사건 부동산을 소외 망 김ㅇ근으로부터 350,000,000원 내지 400,000,000원 선에서 매수하였다는 내용의 확인서를 작성하여 ㅇㅇ지방국세청 직원에게 우송한 사실, 이 사건 부동산 매도대금 가운데 14,755,544원은 이 사건 부동산 구입시 부담하였던 채무변제에, 11,104,414원은 소외 망 김ㅇ근의 입원치료비로 각 사용된 사실은 앞서 본 바와 같다.

According to the above facts, the disposition of the real estate of this case was made in preparation for the commencement of inheritance due to death. The sale price is at least KRW 35,343,410, which is the appraised value under the latter part of Article 5(1) and Article 5(2)1(a) of the former Enforcement Decree of the Inheritance Tax Act. Of the sale price of the real estate of this case, KRW 329,483,452, which is calculated by deducting KRW 14,755,544, and KRW 11,104,414, from the above sale price of the real estate of this case, the above sale price of the real estate of this case, and KRW 329,483,452, which is the actual inheritance of the plaintiffs (this case's sale price of real estate of this case, is obvious as there is no ground for the plaintiffs' assertion that all the expenses were used for the treatment and living expenses of the non-party Kim Young-young, and the donation to non-party Song -S.).

(3) Judgment on the plaintiffs' assertion of the above (3)

The actual acquisition value of the real estate of this case is KRW 260,00,000,00, and it seems that the actual transfer margin is 125,000,000,000, and the actual transfer margin is consistent with the plaintiffs' assertion that Gap's evidence Nos. 10, and witness most -, and each testimony of leather - Eul's right is 19-2, and as seen above, it is difficult to believe that the standard market price under Article 115 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act at the time of the transfer of the real estate of this case is 35,343,410, in light of the fact that the standard market price of the real estate of this case under Article 115 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act at the time of the transfer of

(4) Calculation of legitimate capital gains tax and defense tax

The fact that the non-party Kim Jong-tae did not make the preliminary or final return of the transfer margin following the transfer of the real estate of this case is the plaintiffs, and considering the whole purport of the pleading in addition to the statements in Eul evidence Nos. 1, 2, and Eul evidence Nos. 21-2, Eul evidence No. 22-1, 2, and Eul evidence No. 3, it can be acknowledged that the standard market price of the real estate of this case under Article 115 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act at the time of the acquisition of the real estate of this case is 93,85,930 won, and the same standard market price at the time of the transfer of the real estate of this case is 35,343,410 won, and accordingly, when calculating the transfer income tax and the defense tax following the transfer of the real estate of this case, the transfer income tax is 185,712,240 won, 37,414,48 won.

On the other hand, according to the above-mentioned relationship between the non-party deceased Kim-dong and the plaintiffs, the property of the non-party deceased Kim-dong inherited at the ratio of the plaintiff Kim-soo, Kim-soo, Kim-sung, Kim-sung, Kim - Kim - Kim : 6: 4. Accordingly, the calculation of the transfer income tax and the defense tax succeeded by the plaintiffs is the same as the tax amount in the payment notice column of the annexed list of capital gains tax, etc. Therefore, the disposition

4. Conclusion

Therefore, among the plaintiffs' claims, the part seeking revocation of the portion exceeding the amount indicated in the legitimate tax amount column of the attached list of inheritance tax, etc. among the disposition imposing inheritance tax of this case, such as the inheritance tax of this case shall be accepted, and the remaining claims shall be dismissed as it is