[증여세부과처분취소][공2009상,670]
[1] The person who bears the burden of proving the existence of the purpose of tax avoidance under Article 41-2 (1) 1 of the former Inheritance Tax and Gift Tax Act, which is a provision on the constructive gift of title trust (=person who bears the burden of proving the existence of such purpose)
[2] The case holding that in case where stocks were held in title trust for the purpose of obtaining additional loans under the name of another person by avoiding the lending limit per person’s stock security, the purpose of tax avoidance was also the case where the global income tax amount avoided by title trust reaches a considerable amount
[1] The legislative intent of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003) is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, if the title trust was recognized to have been conducted for any reason other than the purpose of tax avoidance, and it is merely a minor reduction of tax incidental to the said title trust, it cannot be readily concluded that there was the purpose of tax avoidance in the title trust. However, in light of the legislative intent as seen above, it cannot be concluded that there was a purpose of tax avoidance in the title trust only when the purpose of the title trust is not included in the purpose of tax avoidance. Therefore, it cannot be said that there was no other main purpose and there was a intent of tax avoidance. In this case, the burden of proving that there was no tax avoidance exists a person who asserts it
[2] The case holding that in case where stocks were held in title trust for the purpose of obtaining additional loans under the name of another person by avoiding the limit on loans by each person’s stock security, the purpose of tax avoidance was also the case where the global income tax amount avoided by title trust reaches a considerable amount
[1] Article 41-2 (1) (current Article 45-2 (1)) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of December 30, 2003) / [2] Article 41-2 (1) (current Article 45 (1)) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of December 30, 2003)
[1] Supreme Court Decision 2003Du13649 Decided December 23, 2004 (Gong2005Sang, 211), Supreme Court Decision 2004Du7733 Decided May 12, 2006, Supreme Court Decision 2004Du11220 Decided September 22, 2006 (Gong2006Ha, 2016)
Plaintiff 1 and one other (Law Firm Rate, Attorneys So-young et al., Counsel for the plaintiff-appellant)
Head of Namgu Tax Office and one other
Daegu High Court Decision 2006Nu1662 Decided August 24, 2007
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. The legislative intent of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003) is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, if the title trust was recognized to have been conducted for any reason other than the purpose of tax avoidance, and only a minor reduction of tax is generated as incidental to the said title trust, it cannot be readily concluded that there was a "tax avoidance purpose" in such title trust (see, e.g., Supreme Court Decision 2004Du7733, May 12, 2006). However, in light of the legislative intent of the above, it cannot be deemed that there was a deemed donation by applying the proviso of the above Article only where the purpose of tax avoidance is not included in the purpose of the title trust, and thus, it cannot be deemed that there was no other purpose of tax avoidance as well as the intent of tax avoidance.
According to the reasoning of the judgment below, the court below acknowledged the facts based on its adopted evidence. (1) The non-party (1) held the title trust of shares with 15 persons including the plaintiffs from 2001 to 2003 when the comprehensive taxation on financial income was enforced; (2) dividend income is expected and made when the investor invests in the shares; (3) the non-party's global income tax amount derived from the non-party's title trust of shares and the dividend income generated from the shares held in its name was 14,145,731 won in total; and (4) the non-party's global income tax amount avoided from the title trust of 15 persons including the plaintiffs was 14,145,731 won in total; and (3) the non-party's global income tax amount avoided from the title trust of 15 persons including the plaintiffs was 101,36,098 won in addition to the title trust; and (4) the non-party did not accept the plaintiff's global income tax evasion for the non-party's global income tax evasion purpose of this case.
In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the purpose of tax avoidance in the constructive gift of trust property as otherwise alleged in the ground of appeal
2. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Young-chul (Presiding Justice)