A. On October 2012, Plaintiff A made a share transfer contract with 6,00 shares of BB Co., Ltd. (hereinafter “B”) owned by O.O. (hereinafter “instant shares”) with her mother of 6,00 shares, 5,500 shares each of 5,00 shares, 5,50 shares, 50 shares, 5,00 shares, 5,00 shares, 5,00 shares, 5,00 shares, and shares transfer and takeover contract with the above trustee.

B. On June 14, 2012, Plaintiff A returned 5,900 shares out of 6,000 shares trusted in title to DD.

C. On June 30, 2012, Plaintiff A reported the transfer income tax on the transfer of the instant shares to the Defendant. On December 10, 2013, Plaintiff A demanded the Defendant to submit explanatory materials on the ground that the transfer of the instant shares was a low-price transfer to related parties. Plaintiff A explained that the transfer of the instant shares was a title trust to avoid the division of property due to divorce with FF.

D. Accordingly, the Defendant: (a) on March 10, 2014, pursuant to Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter “former Inheritance Tax and Gift Tax Act”), it deemed that Plaintiff A donated the instant shares to PlaintiffCC, FF, and E; (b) calculated the market price of shares as KRW O, PlaintiffCC, F, and E as KRW O, O, O, and imposed gift tax (including additional tax); and (c) on Plaintiff AA designated Plaintiff A as a joint taxpayer and imposed gift tax of the same amount (hereinafter “instant disposition”).

E. The Plaintiffs appealed and filed a tax appeal on April 29, 2014, but each dismissed.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 13 through 16 (including branch numbers, hereinafter the same shall apply), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant title trust was aimed at defending the division of property due to divorce with F.

The gift tax is not subject to the gift tax because it was not subject to the purpose of tax avoidance.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle in order to effectively prevent tax avoidance by using the title trust system, thereby realizing the tax justice. As such, the proviso to Article 45-2(1) is applicable only where the purpose of tax avoidance is not included in the purpose of title trust, and the burden of proving that there was no purpose of tax avoidance in this case is the person who asserts it (see, e.g., Supreme Court Decision 2003Du13649, Dec. 23

Meanwhile, if it is recognized that the title trust was made for another reason, not for the purpose of tax avoidance, and there is no tax reduction incidental to the title trust or only a minor reduction of taxes, such title trust cannot be deemed as having the purpose of tax avoidance, and the mere mere fact that there is a possibility of future tax reduction may arise, cannot be deemed as having the purpose of tax avoidance (see, e.g., Supreme Court Decision 2004Du7733, May 12, 2006).

2) In the instant case, the following facts may be acknowledged if the descriptions of Gap's 2 to 8, 10, 11, 12 (including the number number) and Eul's 3 and 4 include the whole purport of the pleadings.

① The Plaintiff A, a father of the Plaintiff A, is a company run by GG and Hah, a small father, PH, and is located in O OO, and the Plaintiff A had been on duty in BB over time since her marriage with F on 26.00 O.O. 200. The Plaintiff A acquired 22,00 shares out of the total issued shares of 30,000 shares of 20,000 shares on the date of 20,000 shares, but FF was unaware of such fact, and was unaware of the fact that she owned 500 shares of B as an auditor.

② The Plaintiff AA did not look at FF’s family with her sexual intercourse, and did not properly look at the her home. The Plaintiff AA was in preparation for divorce with FF while living in the O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-O-dong O-O-dong O-dongO-O-dong O-dong O-dongO-O-dongO-dongO-dongO-O-dongO-dongO-dong.

③ With respect to the transfer of the instant shares, Plaintiff AA agreed to the following contents with Plaintiff CCC, and agreed to obtain a certificate of personal seal impression issued by Plaintiff CCC 20O.O.O.O.O.O.O.O.O.O. and the instant shares, and received a certificate of personal seal impression issued in the same manner as FF and EE. Plaintiff A transferred BB’s shares issued on the same day to Plaintiff CCC. Plaintiff A (hereinafter referred to as “A”) transferred Plaintiff AA’s shares in the FF name to the same day. Plaintiff A (hereinafter referred to as “A”) agreed to entrust BB’s common share owners in the name of the Plaintiff PCC (hereinafter referred to as “OCC”) to defend the other party’s claim for unfair division of property, following the decision to combine on March 2012.

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2. A cannot claim B the transfer price of shares pursuant to a share transfer contract concluded by O.O.O.O.O. and B shall not exercise all rights, such as a claim for the transfer of shares, the exercise of rights, the act of disposal and the claim for distribution.

3. A shall not have the effect of a contract for transfer and takeover of shares on April 13, 2012, and A shall retain all rights to the shares subject to transfer, irrespective of the share transfer and takeover contract entered into on April 13, 2012.

4. A and B shall restore the transfer of shares to their original state after the completion of the divorce action by Gap, and shall bear all the expenses incurred in relation to this case.

④ Plaintiff A filed a divorce report with F,O.O.O.O.O., around O.O., and around O.O., around 200. However, F refused divorce on the grounds of division of property, and F, under O.O., U.O., O., O., O., O., O., O., O., O., O., O., O., O., O., O., O-type, O-type, O-type, O-type, O-type, O-type, O-type, O-type, O-type, O-type, O-type, O-type, O-type, O-type, and 201O, respectively. As a result, Plaintiff A and F were adjusted to divorce on June 27, 2014.

⑤ At around 20O.O.O. (O.) where a divorce lawsuit is pending, Plaintiff AA requested the Defendant to submit explanatory materials as earlier, and the instant shares transferred to three persons, including PlaintiffCC, were returned to its own name.

④ Meanwhile, BB did not default national taxes from 20O.O.O. to 20O.O., and even though the surplus of the un disposed profits was transferred to OO as of the end of 2011 and as of the end of 2012, there was no distribution to shareholders until now.

3) If the circumstances are the same, it is recognized that Plaintiff A made a title trust of the instant shares with the instant shares at the time of divorce with F, and that there exists a possibility that the result of the reduction of future taxes may arise, and that the said tax was actually avoided.

Inasmuch as there is no absence, it is difficult to view Plaintiff AA to have held the title trust of the instant shares for the purpose of evading taxes.

Therefore, given that the title trust of this case does not fall under the subject of gift tax, the gift tax is imposed on PlaintiffCC, who is a donee on a different premise, and the disposition of this case where Plaintiff A, a donor, was designated as a joint and several taxpayer and the gift tax is imposed on him is unlawful.

3. Conclusion

Therefore, the plaintiffs' claims seeking the cancellation of the disposition of this case are with merit, and it is so decided as per Disposition by the assent of all.