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

A. The director of the Seoul Regional Tax Office, from March 21, 2008 to June 27, 2008, conducted a survey on the change of shares and the source of funds to acquire shares against the Plaintiff, and notified the Defendant of the following shares (hereinafter referred to as the “instant shares”) in two securities companies, including the listed securities company (hereinafter referred to as “O securities”) and △△ Securities Co., Ltd. (hereinafter referred to as “△△”) and △△ Securities Co., Ltd. (hereinafter referred to as “△△”) acquired under the Plaintiff’s name by opening a borrowed securities account in the Plaintiff’s name from March 21, 2008 to June 27, 2008.

B. Under Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act"), the Defendant deemed that the Plaintiff donated the shares of this case on July 15, 2005, calculated the constructive gift value of the shares of this case as of the transfer date or the subscription date for new shares (stock of △ Health Care Co., Ltd.) as stated in the following table, and then on October 1, 2009, imposed the Plaintiff a gift tax of KRW 1,355,142,690 on the gift on the portion of December 31, 204 (the amount below 10 won was cut down; hereinafter the same shall apply), 89,745,860 won on the gift of this case on July 15, 2005, each of the gift tax of this case on the donation of this case on December 31, 2006.

C. The plaintiff, who is dissatisfied with the disposition of this case, brought an appeal with the Tax Tribunal on December 10, 2009.

B. On November 26, 2010, the Tax Tribunal dismissed the Plaintiff’s claim.

Facts that there is no dispute over the basis of recognition, Gap evidence 2, Eul evidence 1 through 4, and 10 evidence (including each number), the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) The Plaintiff was recommended by the Plaintiff to return to Korea after completing exchange professors from a foreign country through an investment in stocks, and as between July 2004 and September 2, 2004, borrowed from the Plaintiff KRW 1,185,000,000 from the wife of the Plaintiff and KRW 240,000,000 from the Plaintiff’s wife of the Plaintiff (the Plaintiff’s counsel), and then purchased the instant shares with the said loan, and was not the actual owner who purchased the instant shares with the said loan, and was not the title trust of the Plaintiff’s shares.

2) In addition, even if the tea entrusted the Plaintiff with the title of ownership of the instant shares, this was aimed at providing the Plaintiff with economic assistance with the proceeds from the stock transaction. In the case of the transfer of shares in XX industry in 2004 and 2005, capital gains tax was imposed on the Plaintiff as in the next A. The amount of global income tax on the dividend income of the shares avoided from the title trust is minor, and thus, the purpose of tax avoidance at the time of the said title trust was nonexistent, and thus, the said title trust cannot be deemed as a gift.

3) Even if it is not so, the instant disposition against the economic substance of the Plaintiff and against the principle of double taxation is unlawful as it violates the principle of double taxation, when the Plaintiff imposed gift tax by deeming the Plaintiff to have donated the instant shares to the Plaintiff at the time of transfer of the shares acquired after 2005, which was deemed to have been donated to the Plaintiff on December 31, 2004 (or at the time of transfer of shares issued after 2005) by deeming the Plaintiff to have donated the shares from the nextA.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The next AA is the head of KimCC, who is a major shareholder of XX industry, and is a relative as prescribed by Article 20 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter the same shall apply). The next AA has worked in the Korea Exchange Group for about twenty (20) years in charge of funding, accounting, etc. while serving as the vice president of the XX industry from May 2004.

2) The Plaintiff is currently serving as a professor of the United Kingdom AA University as the wife of the next AA. Around two months each year, the Plaintiff was demoted against the students of international colleges in the Republic of Korea. Since departure from the UK on August 4, 2007, the Plaintiff did not return to the Republic of Korea until now.

3) 차AA은 2004. 7. 9. 원고와 함께 OO증권 중앙지점을 방문하여 원고 명의의 증권계좌(001-11-XXXXXX)를 개설한 후, 2004. 7. 12.부터 같은 해 9. 8.까지 사이에 합 계 1,425,000,000원(1,185,000,000원은 차AA 명의로, 240,000,000원은 이BB 명의로 입금)을 위 증권계좌에 입금하였는데, 위 증권계좌 개설신청서의 주소지란에는 차AA 의 주소가 기재되어 있고 위 증권계좌의 비밀번호는 아래에서 보는 유DD의 증권계좌 의 비밀번호와 동일한 2XXX이다.

4) From July 2004 to March 2005 through the said securities account in the Plaintiff’s name, the tea traded shares in the XX industry. From February 17, 2005 to April 8, 2005, KRW 2,342,00,000 of the share transfer price was deposited from the said securities account over several occasions (the withdrawal money table of the said securities account was written by tea or EB) and the transfer details of the deposited money were as follows.

① 2005. 2. 17. 1,185,000,000원이 차AA의 외환은행 계좌(621-XXXXXX-821)로 입금됨

② 나머지 1,157,000,000원이 최종적으로 원고 명의의 신한은행(구 조흥은행) OO지점 계좌(개설일: 2005. 3. 14., 계좌번호: 320-04-XXXXXX, 이후 110-172-XXXXXX 으로 변경됨)로 입금됨

5) The above stock transfer proceeds (including stock dividend proceeds) deposited in the above new bank account in the name of the Plaintiff, and the major details of the use of profits from stock transactions through the securities account in △△ branch and the securities account in △△ branch and the O-listed securities account in the name of △ branch are as follows. However, the following acts were committed by the Plaintiff, including withdrawal from the above new bank account and stock transactions through the above securities account:

① The amount of KRW 200 million withdrawn on July 14, 2005 and paid as the paid-in capital increase for the capital increase of △△ Group Co., Ltd.

② From March 16, 2005 to September 25, 2006, the sum of KRW 376,765,700 shall be deposited with NaE, Kim F, KimF, KimGG, and Haz to pay the release on bail purchased from KimD over 11 times.

③ 2005. 7. 25. 개설된 원고 명의의 △△증권 OO지점 증권계좌(XXXXXXXX-01) 에 6억 5,000만 원이 예치되어 XX산업, 주식회사 ◇◇의 주식 등이 거래됨

④ 300 million won is deposited in the securities account (068-11-039558) in the name of the Plaintiff, opened on November 14, 2007 (or without the Plaintiff’s visit or power of attorney) in the securities account in the name of the Plaintiff, and the shares, etc. of the Central Bilateral Co., Ltd. are traded.

⑤ From May 6, 2005 to February 15, 2007, the sales price for the instant officetel 11902 located in the Seoul OOO-Gu OO-dong OO-dong (hereinafter “the instant officetel”) executed by the XX industry, etc. is deposited in the sum of KRW 408,931,340 (contractor and owner on the register) in the XX industry.

6. On May 6, 2005 and October 12, 2006, the sum of the amounts of KRW 20 million shall be deposited in the tea, tea, and tea of ASEAN. < Amended by Presidential Decree No. 18740, Oct. 12, 2006>

7. Money deposited in KRW 215,383,00 on May 30, 2007 shall be paid to Kazakh's investment in the development project of Kazakh's U.S.

⑧ 2007. 12. 12. 주식회사 ▲▲옥션이 주최한 미술품 경매에서 낙찰받은 미술품대금으로 192,030,000원이 입금됨

(9) The amount of 20 million won withdrawn on March 31, 2008 and paid to the next A shall be paid to the Fund.

6) On June 1, 2009, the Plaintiff paid KRW 411,545,430 to the resident tax for the transfer income tax and resident tax for 2005 pertaining to the shares of XX industry transferred to 2005.

7) 2003. 12. 31. 및 2004. 12. 31. 현재 원고와 차AA, 이BB, 유DD, 주식회사 □□헬스케어, 주식회사 ☆☆디 등은 XX산업 주식 100분의 3 이상을 소유하는 구 국세기본법 시행령 제20조에 의한 친족 기타 특수관계인으로서, 구 소득세법(2005. 12. 31. 법률 제7837호로 개정되기 전의 것) 제94조 제1항 제3호 ㈎목, 구 소득세법 시행령(2009. 2. 4. 대통령령 제21301호로 개정되기 전의 것 및 2005. 8. 5. 대통령령 제 18988호로 개정되기 전의 것) 제157조 제4항 제1호의 규정에 의하여 누구의 명의로 XX산업 주식을 취득하였든지 간에 2004년과 2005년에 보유하고 있는 XX산업 주식을 양도하는 경우 모두 양도소득세 과세대상이었다(차AA은 이와 별도로 XX산업그룹의 대주주인 회장 김CC와 구 국세기본법 시행령 제20조에 의한 친족관계로 인하여 양도소득세 과세대상이다).

8) Meanwhile, as in the Plaintiff, the Plaintiff opened an OS account under the name of the head of the Gu, and deposited KRW 2.520 million, and thereafter traded shares. The head of the Yeongdeungpo-gu Tax Office recognized that the above OS account under the name of the Plaintiff was a borrowed-name securities account of the Plaintiff, and applied Article 45-2 of the former Inheritance Tax and Gift Tax Act to the stocks, etc. of the sales industry, which was acquired under the name of the Plaintiff through the said securities account, and thus, imposed gift tax by deeming that the UDR was donated to the Plaintiff by applying the provisions of Article 45-2 of the former Inheritance Tax and Gift Tax Act to the stocks, etc. acquired under the said securities account. In addition, the following provisions were applied to the stocks, which were acquired under the name of the head of the Gu in the name of KimS who was a subordinate employee, and thus, the NAA andS were subject to gift tax by deeming ES to have been donated to the NA.

9) If the nextA deemed that it held the title trust of shares with the Plaintiff and UD, the global income tax on the dividend income of the reduced shares is KRW 10,386,253 (the amount in which the global income tax progressive rate is not applicable).

Facts that there is no dispute over the basis of recognition, each entry in Gap 3 through 7, 10, 11, 13, 14, 17, 22, 24, 25, 28, Eul 1 through 10, and the purport of the whole pleadings, and the testimony and the purport of the whole pleadings by the witness car A.

C. Determination

1) Determination on the first argument (whether title trust of the instant shares is held)

In full view of the following circumstances known through the purport of the above facts and the entire pleadings, it is reasonable to deem that the following facts were held in title trust with the Plaintiff, since the tea opened the securities account under the name of the Plaintiff and opened the instant securities account, and the profits therefrom were attributed to the Plaintiff. Accordingly, it is reasonable to deem that the tea registered the instant shares in title trust with the Plaintiff, and otherwise, the statements in the evidence Nos. 68 and the testimony by the witness 5 billion won, consistent with the Plaintiff’s assertion that the tea acquired the instant shares by borrowing KRW 1.425 million from the next and the secondB, and there is no other evidence to acknowledge the Plaintiff’s allegation.

① The following: (a) the Plaintiff involved in the opening of the O Securities Central Branch Account and the O Securities Accounting Account in the name of the Plaintiff; (b) the next A and this Party, based on the money deposited in the securities system of the said O Securities Branch; (c) all shares transaction was made through the said O Securities and △△ Securities Account; and (d) the withdrawal of each of the said securities accounts, including the O Securities Central Securities Branch Account, appears to have been made by the next A and thisB; and (c) the said fact alone alone can be inferred that the said each of the securities accounts constituted a secondary title trust account of the next A.

② The Plaintiff asserts that the Plaintiff paid KRW 376,765,700 to the Plaintiff with the price for release on bail purchased by the Plaintiff, that the Plaintiff paid KRW 240,000,000 and interest thereon, the interest on KRW 1185,00,000 loaned to the Plaintiff by the Plaintiff, and the interest on KRW 2.5,000,000 loaned to the Plaintiff by the Plaintiff, instead of paying the interest on KRW 2,500,000,000,000,000,000,000,000 were paid by the Plaintiff. However, when the Plaintiff purchased the amount on bail, it would be clear that the Plaintiff paid the amount directly to the Plaintiff and later received the principal and interest equivalent to the amount on bail from the Plaintiff at the new bank account in the name of the Plaintiff (see, e.g., regional tax office 500,000,000,000).

③ According to the evidence evidence Nos. 3 and 6, it is recognized that the new R had received the investment money after explaining only the next AA without preparing an investment contract with the Plaintiff, only because the Plaintiff was only her, or there was no call, and without making an investment contract with the Plaintiff as an investor. The amount of KRW 215,383,000, which was deposited from the new bank account in the name of the Plaintiff, appears to be not the Plaintiff’s investment money but the amount of KRW 215,383,00, which was deposited into the new bank account in the name of the Plaintiff.

④ 원고는 차AA의 권유로 주식회사 ▲▲옥션이 주최한 미술품 경매에서 미술품

(도TT 화백의 '비원풍경' 1억 4,000만 원, 이UU 화백의 '정물' 800만 원, 김YY 화백의 '풍경' 2,500만 원)을 낙찰받은 것이라고 주장하나, 갑 22호증의 1 내지 3, 을 8, 10호증의 각 기재에 의하면, 차AA은 평소 미술품에 관심이 많아 미술강의를 듣고 그림을 하나씩 사고 있었으며, 2007. 12. 5. 주식회사 ▲▲옥션이 주최한 미술품 경매에서 자신 명의로 도TT 화백의 '비원풍경'(낙찰가 1억 4,000만 원), 이UU 화백의 '정물'(낙찰가 800만 원), 김YY 화백의 '풍경'(낙찰가 2,500만 원)을 낙찰받은 사실, 이BB(차AA의 처)는 2008. 6. 2. 서울지방국세청에서 조사를 받으면서 차AA이 도TT 화백의 그림을 1억 4,000만 원에 구입하여 자택에 걸어 놓았다고 진술한 사실이 인정 되는 점에 비추어 볼 때, 위 미술품들은 원고가 구입한 것이 아니라 차AA이 구입한 것으로 보인다.

⑤ According to the evidence evidence Nos. 18, 5, and 6 of the above evidence, the company is a lighting fixtures wholesale company established by the following: the major trading office after 2003 is the XX industry. On December 31, 2001, the shareholder’s share ratio was 50% of the following AA, the BB 40%, the south and south of the tea, and the 5% of the followingM were 10% of the total shares of the company, and the 100% of the above shares were all donated to the company (the same applies to the year 2004), and the 204,84,813, the representative director of the above company was not registered in the above company, and the 205, the 205, the 200,000,000,000 won of the above company's capital increase, and the 20,000,000 won of the above company's capital increase was not registered in the above company.

(6) The Plaintiff has another new bank account in which benefits, etc. are transferred or credit card payments are settled in addition to the above new bank account in which the transfer price of the instant shares was deposited and deposited, and there is no record of deposit from the above new bank account in which the transfer price of the instant shares was deposited and deposited to the Plaintiff’s other bank account (see subparagraph 10).

7) In light of the above circumstances, the Plaintiff appears to have acquired the instant officetel in the name of the Plaintiff or to have donated the purchase price of the instant officetel to the Plaintiff with the purchase price of the instant shares reverted to oneself.

④ In light of the fact that the Plaintiff, who had worked in the O securities for 20 years, has abundant experience and knowledge about securities trading practice and related knowledge, worked as vice president of the XX industry construction division, would have been able to give economic assistance to the Plaintiff as the wife, if he wanted to do so, through the trading of stocks, etc. of the XX industry that is anticipated to increase the share price in his name, and then, in order to reduce the burden of global income tax on the dividend income of the instant shares by acquiring and trading shares, etc. of the relevant sales industry under the name of the Plaintiff, and in fact, to avoid capital gains tax, etc. on the dividend income of the instant shares.

2) Determination of the second argument (whether there is a purpose of tax avoidance)

A) The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to effectively prevent tax avoidance by using the title trust system, thereby realizing the tax justice. Thus, if it is recognized that the title trust was made for reasons other than the tax avoidance purpose, and that it is merely a minor reduction of tax incidental to the said title trust, if it is recognized that the title trust was made for other reasons.

In light of the above legal purport, it cannot be readily concluded that the title trust had the purpose of tax avoidance. However, in a case where the purpose of title trust is not included in the purpose of tax avoidance, it cannot be deemed that there was an intent of tax avoidance, inasmuch as the proviso to the above provision is applied only to a case where the purpose of tax avoidance is not included in the purpose of title trust, and thus, it cannot be deemed that there was an intention of tax avoidance. In such a case, the burden of proving that there was no purpose of tax avoidance exists the person who asserts it (see Supreme Court Decision 2007Du19331, Apr. 9, 200).

B) The Plaintiff asserts that the primary reason why the Plaintiff trusted the title of ownership of the instant shares to the Plaintiff is to provide the Plaintiff with economic assistance with the proceeds from the instant stock transaction, and that there was no objective of tax avoidance at all.

On the other hand, it is difficult to believe that, as seen earlier, the testimony of the witness next to it is true that the next AA, who was well aware of the fact that the 20-year experience in the securities transaction practice and related knowledge is subject to a maximum amount of gift tax in the case of stock title trust, has acquired and traded the instant shares in the name of the Plaintiff for the purpose of providing economic assistance to the Plaintiff only when taking the risk of imposing gift tax, and there is no evidence to prove that the title trust of the instant shares was made for any reason other than the tax avoidance purpose.

In addition, the following circumstances, i.e., ① there is no persuasive explanation as to the fact that the title trust of the instant shares was made for reasons other than tax avoidance purposes; ② in a similar time, the title trust of shares was made not only to the Plaintiff but also to KimS, who was his subordinate staff; ③ in a long-term manner, the Plaintiff’s acquisition of shares was made in title trust with the Plaintiff and UND; ③ even if the global income tax on the dividend income evaded was not considered, the transfer of shares was 10,386,253; ④ in a case where the Plaintiff did not know that the purpose of this case’s acquisition of shares was 00 years and 205 years and 200 years in light of the relevant laws and regulations, the Plaintiff did not actually evade the transfer income tax by way of title trust with the Plaintiff at the time of this case’s 20 years and 0 years and 00 years in case of transfer of shares to the Plaintiff. However, there is no room to view that the Plaintiff’s 20 years and 000 years in case of transfer income tax of the Plaintiff’s shares subject to taxation.

3) Determination as to the third argument (the assertion that the amount of duty imposed is excessive)

Article 45-2(1) of the Inheritance Tax and Gift Tax Act is an exception to the substance over form principle, and as an exception to the substance over form principle, the title trust system is limited to donation to the extent that it is intended to effectively prevent the abuse of the substance over form principle as a means of tax avoidance, and does not change the ownership of the property under title trust. Thus, the actual owner of the property under title trust continues to be the title truster notwithstanding the above provision (see Supreme Court Decision 2004Du11220, Sept. 22, 2006). Furthermore, the above provision on the constructive gift of title trust is a separate re-distribution that requires the transfer or exercise of the right, etc., and where it differs from the actual owner or the nominal owner, a gift tax is imposed on the property deemed donated pursuant to the above provision as a requirement for taxation. In light of the fact that the property is the title trust shares itself, not the purchase price, and thus, it is difficult to view that the above provision on double taxation or the substance gift tax is contrary to the principle of double taxation.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.