한정승인을 할 경우 부동산에 관하여 발생할 수 있는 몇 가지 조세 문제에 관한 검토

A study on tax issues that may arise in relation to real estate in case of qualified acceptance

There are lots of practical and theoretical problems in case of qualified acceptance, especially in relation to real estate. For exemple, think about that question ; After the inheritee set a mortgage on real estate A and died, one of inheritors filed a report of qualified acceptance. Discretionary auction on real estate A proceeded, and successful bidder paid price at official auction. Then inheritee’s creditor received dividend from that auction. Should inheritors pay for transfer income tax of real estate A, despite qualified acceptance of one of inheritors? Jugements of lower courts and decisions of Tax Tribunal are lack of consistency and not unified. For the reason that qualified Acceptance is under the condition of repaying the obligation of inheritee, it is important to know when the transfer is in terms of transfer income tax. If there was a transfer prior to the inheritee’s death, the obligation of transfer income tax is that of inheritee. On the other hand, if there was a transfer after the inheritee’s death, the obligation of transfer income tax is that of inheritor. That is due to the text of Civil Act Article 1028. In this case, Civil Act Article 998-2 can be applied to transfer income tax. Expenses for inheritance on Civil Act Article 998-2 can include liquidation cost that is for settling the liability of transfer income tax of inheritee. There is an acquisition tax when an inheritor acquires real estate due to inheritance. However, since inheritors are already required to pay inheritance tax, there is a double taxation for inheritors to pay the acquisition tax. Inheritance tax shall be included in the expense of inheritance under Article 998-2 of Civil Act because the estate tax method is adopted and the estate tax method levies on the property of inheritee. Since the inheritance tax is the obligation of the inheritee, it is reasonable to assume that inheritors should not be liable for the qualified acceptance. A renunciation of an inheritance may be used to exempt all obligations arising from inheritance. If there is a risk of tax liability incurred despite filing a report of qualified acceptance, a renunciation of an inheritance should be considered within the statutory period.