(영문) 서울고등법원 2011. 12. 07. 선고 2011누18795 판결조세회피의 목적이 없었던 것으로 인정되므로 증여의제로 과세한 처분은 위법함[국패]
Seoul Administrative Court 2010Guhap37414 ( October 13, 2011)
early 2010west0309 (2010.30)
Since it is recognized that there was no purpose of tax avoidance, a disposition taxable as deemed donation is illegal.
The purpose of title trust is to satisfy the number of promoters under the Commercial Act and to avoid compulsory execution, and in light of the fact that dividends have not been paid since the incorporation of the company, the title trust is recognized as having no purpose of tax avoidance, and thus the disposition imposed on the constructive gift is illegal.
2011Nu18795 Revocation of Disposition of Imposition of Gift Tax
Gongx 5 others
The Head of Song District Tax Office and five others
Seoul Administrative Court Decision 2010Guhap37414 decided May 13, 2011
November 2, 2011
December 7, 2011
1. All appeals filed by the Defendants are dismissed.
2. The costs of appeal are assessed against the Defendants.
1. Purport of claim
The Defendants’ disposition of imposing gift tax on each of the Plaintiffs is revoked as stated in the Disposition No. 11, 2009.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiffs' claims are dismissed in entirety.
1. cite the judgment of the first instance;
The reasons for the judgment of this court are the same as the corresponding part of the judgment of the court of first instance, except for the addition or dismissal as follows. It shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420
Pursuant to Article 3, each of the instant dispositions, which reduces the 7th and the 7th and the 4th to the 1st, shall be considered as the 1st and the 2nd to the 4th to the 2nd, respectively.
In addition, the company of this case has earned surplus (not less than KRW 6 billion in 2006, approximately KRW 6 billion in 2007, and KRW 6.2 billion in 2007) during the period of title trust in this case. In addition, the company of this case added "in consideration of the fact that it had earned surplus during the period of title trust in this case."
In light of the transaction relation between the company of this case and D, D, etc., which can be known by the statements in the evidence Nos. 9 through 24, the transfer of the above shares, and the process of settlement of the price, etc., "(No. 12)" shall be deemed as "(no. 12)" for the purpose of evading capital gains tax as alleged by the Defendants.
2. Conclusion
The judgment of the first instance is justifiable. All appeals filed by the Defendants are dismissed.