2. The costs of the lawsuit are assessed against the defendant.

A. The director of the Seoul Regional Tax Office, from August 25, 2009 to December 1, 2009, entered into an agreement with △△△△ Co., Ltd. (former trade name is an OEM; hereinafter referred to as "OE"), which is a corporation listed in KOSDAQ, to conduct an integrated corporate tax investigation, and the non-party company received new shares equivalent to 477,600 shares per share from 12,00 won to 4,160 won in the process of offering new shares in the name of △△△△△, a major shareholder of the non-party company (hereinafter referred to as "△△△△"), the non-party company, a major shareholder of the non-party company, entered into an investment agreement with △△△ (the representative AA, hereinafter referred to as "△△△"), and received 00 won from 11 investors such as new shares, 16086, 20967, 4000 investors' shares or 400 investors' shares.

B. Accordingly, the director of the Seoul Regional Tax Office, while participating in the capital increase with new shares as at December 16, 200, calculated the amount calculated by multiplying the number of shares each share of the non-party company as at the time of December 16, 2005 by the value of property donated to the plaintiff, etc. [the value of property donated to the plaintiff is KRW 390,216,000 (=16,259, X24,000)] by the number of shares each share of the non-party company as at the time of December 16, 2005, by the old 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") by the number of shares each share of the non-party company as at 16,259,000 won (in case of the plaintiff, the value of property donated to the plaintiff is the value of property donated to the defendant, etc.

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 11, 2010, but the Tax Tribunal dismissed the Plaintiff’s claim on December 29, 2010.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 and 2 evidence (including paper numbers), the purport of the whole theory of change

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant: (a) was allocated the instant shares under the name of the Plaintiff, a father, for the purpose of lending the new subscription fund to participate in the capital increase with a view to securing the return of the loan; (b) however, the Defendant, without any grounds, deemed that the instant shares that △△ should have been allocated under the name of the Plaintiff pursuant to the title trust agreement concluded between the Plaintiff and △△, imposed the gift tax on the Plaintiff by applying Article 45-2(1) of the former Inheritance Tax and Gift Tax Act;

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Around December 2005, the non-party company intended to provide new shares equivalent to 477,600 shares per l,160 won per share with a third party; △△△, the major shareholder of the non-party company, entered into an agreement with △△△ in order to raise funds to participate in the above △△△△ on December 2, 2005, on the condition that △△ would pay an amount equivalent to 4% of the investment amount as the preferred interest, △△△ shall pay an amount equivalent to 3% of the investment amount raised as service fees to △△ in addition to the above interest (hereinafter referred to as the “instant financing agreement”). The major contents of the agreement on the financing (Evidence 3) are as follows.

(Omission of Details of the following Financing Agreement)

2) On December 8, 2005, △△△△ concluded an investment agreement (hereinafter referred to as “instant investment agreement”) with the terms and conditions that invite 11 investors, such as the Plaintiff’s wife, and pay the amount equivalent to 4% of the investment amount as interest, on the condition that the investment amount is paid as interest. The main contents of the agreement (Evidence A No. 4) are as follows.

(Ommission of Contents of the following Agreement)

3) 11 investors, such as MaB, entered into the instant investment agreement with △△, and raised a total of KRW 1,687,296,00 with the subscription fund for new shares of the non-party company. △△ pursuant to the instant investment agreement, △△△ was issued cashier’s checks equivalent to KRW 7% of the subscription fund for new shares raised from △△△ in terms of service commission and interest, and KRW 338,00,000, and issued them to investors with the amount equivalent to 4% of the subscription fund for new shares raised as interest pursuant to the instant investment agreement and issued the said cashier’s checks to the investors.

4) Meanwhile, △△△ was allocated KRW 1,687,296,00 of the new shares subscription fund raised pursuant to the instant financing agreement and the investment agreement in the name of investors or a third party designated by the investors, who participated in the new shares subscription fund held on December 9, 2005 and decided to be issued by the non-party company in the name of KRW 477,600 of the new shares issued by the non-party company. The specific details are as follows.

(The following details are omitted)

5) After that, from December 23, 2005 to February 1, 2006, 11 investors, including JungB, sold 405,60 new shares allocated five times from February 1, 2006 to 7,425,07,440 won, after deducting KRW 1,687,296,00 of the invested principal, and returned cashier's checks worth KRW 5,737,782,440 of the remaining sales proceeds and KRW 338,00 of the secured money to △△△△, which were returned to △△△△.

[Ground of recognition] Facts without dispute, Gap 2, 5 evidence, Eul 2 through 4 (including each number), the purport of the whole pleadings

D. Determination

1) In order to establish a deemed donation of title trust for shares pursuant to Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, a change in the name of the actual owner and the nominal owner should be made in the future under an agreement between the actual owner and the nominal owner on the title trust, i.e., the agreement on the title trust of shares, or communication. Thus, if an opening statement in the name of the nominal owner was made without an agreement on the title trust, the said provision cannot be applied (see Supreme Court Decision 2007Du15780, Feb. 14, 2008, Supreme Court Decision 2007Du15780, Feb. 14, 2008). In addition, in cases where the name of shares owned by the obligor is transferred to the creditor for the purpose of securing a claim, the obligee is not merely holding the title of the said shares in the form

2) In light of the above legal principles, in full view of the circumstances, such as the background leading up to the difference between the actual owner of the instant shares and the nominal owner and the actual disposal of the shares after the acquisition of the shares, and the settlement of the price, as seen below through the overall purport of the evidence as seen earlier, and the overall pleadings, it cannot be deemed that △△△ entrusted the instant shares to the Plaintiff, even though the actual owner of the instant shares and the Plaintiff, who is the nominal owner, are different from the Plaintiff, and there is no evidence to acknowledge otherwise. Rather, it is reasonable to deem that △△△, one of the financial investors, was allocated the instant shares in the name of the Plaintiff for the purpose of transferring a security to secure the return of the principal and interest of his investment. Accordingly, the provision on deemed donation under Article 4

① The instant funding agreement between △△ and △△, stating that, until △△ was returned the principal and interest of the investment funds raised by △△△, the △△△’s cashier’s checks issued and kept (Articles 2(5) and 5(2)), the new stocks to be acquired through the participation in △△△△△ is also allocated in the name of △△, and the preemptive rights to be held in custody of such new stocks and new stocks are held by △△△△ (Article 6(11)), and where the total market price of the new stocks allocated and the cashier’s checks offered as security does not exceed 150% of the investment funds raised by △△△△△△△△△△△△△, if the additional collateral is not provided, △△△△△△△△△△△△△△△△△’s additional collateral and the cashier’s checks are stated, and according to this agreement, △△△△△ and the instant funding agreement concluded with △△△△ and the instant investment funds are distributed as a cashier’s check in the name of new stocks.

② The instant investment agreement between △△ and 11 investors, including △△, states that △△, in order to guarantee investors’ interest and interest in the investment, △△△ shall issue cashier’s checks equivalent to 20% of the investment amount (Article 2) to investors, and that, in the event △△ fully redeems investors’ investment amount (Article 8), investors shall return the stocks and secured goods (Article 8). Accordingly, △△, upon entering into the instant investment agreement with the investors, △△ has granted investors the same authority as the securities granted prior to being granted by △△△△ upon entering into the instant investment agreement.

③ In fact, investors, such as Jung-B, received the agreed interest rate from △△ pursuant to the instant investment agreement and invested the amount of KRW 100 million to KRW 200 million or KRW 200 million, and then sold the new shares issued by the Non-Party Company under the name of their or a third party designated by △△△, and returned the remainder of the sales price after deducting the investment principal from the investment principal, to △△△△. In addition, △△ also received the advance interest and service fee from △△△△ by inviting investors in accordance with the instant investment agreement, and returned the remainder of the sales price of new shares after deducting the investment principal received from the investors to △△△△△△

④ After undergoing a tax investigation in relation to the instant case, △△ was in charge of mediating the relationship between △△ and investors. However, the actual ownership of the new shares acquired through the instant offering of new shares was in the △△△, but the investors stated to the effect that, for the purpose of securing the return of the investment amount, the investors would make payments for the subscription price for new shares in their names, and that some investors would not know of the reasons for the payment of the subscription price under the name of others, and KimY-do’s employees, who were in charge of the said practice, kept new shares as a security for the investment amount, and that the substantial ownership of the new shares was in the △△△△.

⑤ On the other hand, there is no clear ground to deem that there was an agreement between the △△△ or △△ and investors to title trust the new shares issued by the non-party company to the extent that the personal trust relationship was created to the extent that only the ownership of shares was entrusted.

(6) Meanwhile, even though shares can be the object of security by establishing a pledge right on shares, the creation of a security right by means of security by transferring the name of shares to the secured party is much more easy in terms of securing and recovering the security right. Therefore, from the standpoint of the secured party, the creation of a security right on shares seems to be more likely than establishing a pledge right on shares.

3) Furthermore, even if Party B was allocated new shares for the purpose of transfer by means of transfer, as seen above, under the name of the Plaintiff, it eventually results in title trust with the Plaintiff, and even in the case of title trust with respect to whether the provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act can be applied to the case of title trust with respect to the property requiring the transfer of rights or the exercise of rights, if the actual owner and the nominal owner are different, the value of the property shall be deemed to have been donated to the actual owner and the gift tax shall be levied on the said property. The purport of the above provision is to effectively prevent the act of tax avoidance using the title trust system, thereby recognizing an exception to the substantial taxation principle in order to realize tax justice (see, e.g., Supreme Court Decision 2003Du13649, Dec. 23, 2004). Accordingly, in light of the fact that the application thereof should be interpreted strictly, the case where the actual mortgagee and the nominal owner of the shares are different from the owner.

Therefore, it is reasonable to view that the gift tax may not be imposed on the Plaintiff on the ground that the Plaintiff is not subject to the provisions of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, even if the Plaintiff trusted the right to transfer the

4) Sub-committee

The Defendant’s disposition of this case based on the premise that △△ entrusted the instant shares to the Plaintiff is unlawful.

3. Conclusion

The plaintiff's claim is justified and accepted.