주식 명의신탁 증여의제 부과처분은 적법함[국승]
Seoul Administrative Court 201Guhap2897 ( October 06, 2011)
Seocho 2010west 1711 ( November 02, 2010)
The imposition of constructive gift of stock title trust is legitimate.
The imposition of gift tax pursuant to the title trust is legitimate because it is difficult to recognize that there was no purpose of tax avoidance due to the title trust, although there was a seal impression in relation to the acquisition of shares at the time of investigation, but there was no direct contract or payment of the acquisition price, and there was no reason to acknowledge that there was no purpose of tax avoidance
2011Nu37284 Revocation of Disposition of Imposition of Gift Tax
XX
Head of the Do Tax Office
Seoul Administrative Court Decision 2011Guhap2897 decided October 6, 2011
March 28, 2012
May 2, 2012
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of gift tax of KRW 000 against the plaintiff on March 10, 2010.
1. The part citing the judgment of the court of first instance
The reasoning for this Court concerning this case is as follows. The relevant part shall be cited pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.
< The part to be used in case of :
The term "A" is changed to the term "B" among the sixth following the fifth day.
From the 5th below that it is difficult to set up the second to the next second below that:
In full view of the fact that the date on which the Plaintiff entered into a contract that the Plaintiff acquired the instant shares from the headCC, the Plaintiff’s female member entered into a contract that the Plaintiff acquired the instant shares from the headCC, and that the Plaintiff acquired the shares issued by the XX company (hereinafter referred to as the “P company”) with the EE, and that the EE did not exercise its right as a shareholder and that it was registered as a shareholder to meet the number of shareholders, and that the EE did not actually pay the purchase price of shares, it is reasonable to view that the E is deemed that the E company acquired the instant shares from the headCC, and that it was recognized that the E company was entrusted with the shares issued by the head company (Evidence No. 10).
Meanwhile, this EE testified to the effect that the court of first instance made it difficult for the Plaintiff to operate a mixed company and requested the Plaintiff to purchase the instant shares due to lack of ability. However, this EE testified to the effect that “the Plaintiff was unable to immediately pay the purchase price of the instant shares due to the lack of financial capacity,” “the Plaintiff was unable to participate in the management of the XX company due to the occurrence of a death accident at the construction site constructed by the company XX after the instant stock transaction,” and that “the Plaintiff failed to submit the financial transaction data supporting the Plaintiff’s assertion that the Plaintiff paid KRW 00 to the FF, but the Plaintiff failed to submit the financial transaction data supporting the allegation that the Plaintiff paid KRW 00 with the funds created by selling the singing that it operated on November 207. However, even if 1 year and 4 months have passed since the date of the instant stock purchase, the Plaintiff did not have the ability to purchase the shares, and it is difficult for the Plaintiff to believe that the Plaintiff was unable to participate in the operation of the EE company due to the death of the company at the construction site.
The following shall take place from the 6th day below to the 4th day above the 9th day:
In full view of the following circumstances, the testimony made by EF witness of the first instance court is difficult to recognize that E had no purpose of tax avoidance in the title trust of the shares of this case in the Plaintiff’s future, and there is no other evidence to acknowledge it.
① The Plaintiff did not assert and prove that there was a clear purpose other than tax avoidance in the title trust of the instant shares.
② Under Article 43(6) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20619, Feb. 22, 2008), the headCC of the instant shares is an auditor of the XX company at the time of sale or before sale of the instant shares (Article 13(4)1 and Article 13(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18989, Aug. 5, 2005); Article 13(4)1 and Article 13(6) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act; Article 4 of the former Enforcement Rule of the Inheritance Tax and Gift Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 425, Mar. 19, 2005). Under Article 35 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, where property is acquired at a price lower than the market price of the instant shares between the parties with special relationship and the transferee, instead of the transferee.
O's 11th or lower of "related Acts and subordinate statutes" are replaced by "related Acts and subordinate statutes" at the end of this judgment.
2. Conclusion
The appeal is dismissed.