2. The plaintiffs' claims against the defendants are all dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

the Gu Office's place of service and place of service

1. Purport of claim

The imposition disposition of each gift tax on which the Defendants made (attached Form 1) to the Plaintiffs shall be revoked.

2. Purport of appeal

The same shall apply to the order.

A. KimA is the representative director ofCC, Inc. (hereinafter referred to as “CC”), and KimD is the inside director of “CC.” The plaintiff SongB is the director of “CC.” The plaintiff SongB is the director of “CC,” the plaintiff OE, SongF, and ParkG are the employees of “CC,” the plaintiff H is the manager of the building owned by the CC office, and the ap II is the director of the CC.

B. JJJ Co., Ltd. (hereinafter referred to as the “JJJJJ”), as a corporation listed on the KOSDAQ as of X. X. 200 X, issued OOO as a company on May 2007, 200, POOO as an OOOO fund, and the entire amount of the warrant certificates, out of which part of them were taken over, were exercised as shown below (JJ purchased the entire portion of the bonds with warrant as of January 1, 2008 and retired as of January 2008).

C. From among JJ new shares 0,000,000 JJ new shares issued by the exercise of preemptive rights on December 2, 2000, the specific purchase of warrant certificates and the exercise of preemptive rights, issued in the names of the plaintiffs, are as follows.

Of the acquisition price of the above new shares of KRW 0,000,000,000 for the above shares of KRW 0,000,000,000 for the above shares, KRW 0,000,000 for the capital of KimA, KRW 00,000,000 for the capital of KimD respectively.

New shares of 0,000,000 won were respectively deposited in the securities consignment account opened in the name of the person who exercised each of the above preemptive rights on January X, 201 (hereinafter “the shares of this case”). Meanwhile, the shares of this case were sold in total amount of KRW 00,000,000,000,000 from March 2, 201 to April 2001.

D. The Defendants determined that the shares of this case were traded by borrowing the Plaintiffs’ names, and applied Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) to the Plaintiffs (hereinafter referred to as “each taxation disposition of this case”).

E. The Plaintiffs dissatisfied with this request and filed a tax appeal with the Tax Tribunal on September 20, 2005, but received a decision to dismiss the request for a tax appeal on December 2005.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-5, Gap evidence 5, Gap evidence 14, Eul evidence 1-5, Eul evidence 1-1 through 5, Eul evidence 6-1 through 7, and the purport of the whole pleadings

2. Relevant statutes;

[Attachment 2] The entry into "related Acts and subordinate statutes" is as follows.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) The actual holders of the instant shares are KimK and YL, not KimA. The Plaintiffs did not know of the purpose of use at the request of KimA, etc., and did not know the fact that the securities deposit account opened was used for the acquisition and exercise of preemptive rights of KimK and Y. Ultimately, KimK and Y were engaged in the instant stock transaction by stealing the names of the Plaintiffs, and there was no agreement between the Plaintiffs on title trust with respect to the instant shares. Each of the instant taxation dispositions was unlawful.

2) The plaintiffs did not have the purpose of tax avoidance.

(b) Fact of recognition;

1) Kim K and LL operated MM as the president, representative director, and representative director of MM (hereinafter referred to as “MM”) in companies, M&A, etc., and MM had a majority of the shares of JJ due to borrowed names, etc.

2) The KimA et al. (hereinafter referred to as the “instant investment agreement”) recommended investment in the JJ new stocks from the LL, and proposed on December XX. 12, 2000 with the JJ as well as the plaintiffs and le II to participate in the exercise of the preemptive rights by the JJ to make an investment of KRW 0,000,000 ( KRW 0,000,000,000, KRW 2,000,000, KRW 2,000,000). At the same time, the LL LL provided to KimA et al. that “the purchase of new stocks shall be made from the LL LL side to invest in the exercise of the preemptive rights to new stocks and purchase the stocks under the name of KimA et al.” (hereinafter referred to as “the Plaintiff’s investment risk”). If KimA et al. were to have been determined as safe investment sources as above, it should be considered as the Plaintiff’s investment risk under the name of the Financial Investment Services and Capital Markets Act.

The instant investment arrangement contains “The investment period from December 200 to February 2, 2001,” “The JJ provided the Plaintiffs, including KimA, and le II with cash assets of KRW 20 billion equivalent to 20% of the investment principal, along with the guarantee of the investment principal, to the Plaintiffs and le II, and the investors, including KimA, etc., the Plaintiffs, and le II, may dispose of the shares without the consent of the JJ and recover the investment amount if the value of the JJ shares is less than 130% of the investment amount (including cash mortgage) even during the investment period.” Meanwhile, the instant investment agreement contains a blank space of “the rate of return on investment guarantee”, and as a result, KimA stated in the Financial Supervisory Service that “I agreed to grant a final and conclusive interest during the investment period.”

3) On December 2, 2000, the date of the instant investment agreement, the JJ Council approved the instant investment agreement. At around the same time, the warrant certificates with respect to 0,000,000 shares, including the instant shares, were purchased in the name of KimA, etc. and the Plaintiffs with respect to 0,00,000,000 shares of J New shares in the name of KimA, etc., and the warrant certificates with respect to 00,000,000 shares of JJ in the name of 00,000,000 each of them (the purchase price of the instant warrant certificates was procured from KimN, etc. under the instant investment agreement).

4) Of JJ new shares 0,000,000 shares issued by the exercise of preemptive rights on December 2, 2000, JJ shares 0,000,000 shares, the new shares amounting to KRW 0,000,000, which were acquired under the name of KimA, etc. and the plaintiffs, was paid to KRW 0,000,000,000 of the new shares amounting to KRW 00,000. The new shares amounting to KRW 00,00,000 was paid to le II’s capital.

5) At the request of KimA, etc., the Plaintiffs opened each securities consignment account at the OO branch of the O securities, and issued the transaction passbook, seal impression, and password to KimA, etc.

JJ shares 00,000, which were deposited in the O securities account in the name of Plaintiff H H, were released, and deposited in the said Plaintiff’s account opened in the O securities OO branch (the said Plaintiff’s account was opened at the request of GA). The transfer by KimA et al. of Plaintiff H’s J shares in the name of Plaintiff H H was to improve the Plaintiff’s business performance by the Plaintiff Park Jong-G’s husband, who works for the OO branch.

6) From February 2001 to 200, the JJ distributed the report materials, such as “the OO of the JJJ’s OO on the commercialization,” the share price of the JJJ increased. From March 2001 to X, KimA, etc. sold the entire amount of shares in the name of 12,698,059,675 won in total, from March 2001 to X. (round that time, the entire amount of shares of the JJJ, i.e., 00,000,000 won, which are owned by le II).

At the time KimA et al., holding a password on the securities deposit account under the names of the plaintiffs, and sold shares in a way that the phone calls were directly made to sell JJ shares from LL, or Plaintiff Park GG via Plaintiff Park Park. After that, if the purchase price of shares was deposited into a bank account in the name of the plaintiffs connected with the above securities consignment account, the plaintiffs withdrawn the money and delivered it to KimA et al. [the plaintiffs asserted that Kim K and YL issued the passbook and password of the securities deposit account under the plaintiffs' names. However, in light of the above process of selling the shares and the fact that KimA et al., in the instant investment agreement, were able to dispose of shares at will, at the time of the price decline, they were in possession of a password of each of the above accounts. If the Plaintiffs were to have been present in the court for the revocation of the disposition of imposition of capital gains tax or its password as a witness, the Plaintiffs did not appear to have been in possession of a password for the management of the securities account (the Plaintiffs’ 1).

7) KimA et al., through the Plaintiffs, withdrawn KRW 00,000,000 from March 200 to April 2001, 201 via a cashier’s check, etc., and on each of the date of withdrawal, signed that MFM’s employees received cashier’s check, etc., and paid an amount equivalent thereto.

8) JJJJ는 영업부진으로 20X2. 6. XX.경 자본잠식상태에 빠지고 20X2. 11. XX. 코스닥 증권시장에서 상장폐지되었다. 김AA 등은 이 사건 주식 취득에 관하여 자본시장법 상의 대량보유 보고의무 위반 및 주요주주 소유상황 보고의무 위반으로 각 벌금 1,000만 원을 선고받았고, 위 판결은 그 무렵 확정되었다[서울중앙지방법원 20XX.XX. XX. 선고 20XX고OXXXX, 20XX고OXXXX(병합) 판결].

In addition, since KimA et al. issued and disposed of 0,000,000 shares of new shares including the shares of this case in their own and their names, KimA et al. claimed a tax judgment of KRW 0,000,000 and KRW 0,000,000 for the acquisition of gains from transfer of 0,000,000,000 for the shares including the shares of this case, and the head of the OO decided on July 2005 that the transfer income tax of KRW 0,00,000 for the year 200,000 for the acquisition of gains from transfer of 0,000 and KRW 0,00 for the shares including the shares of this case, and the head of the OO decided on July 205 that the head of the OO filed a claim for a tax judgment of KRW 00,000 for the transfer income tax of 20,000 for the above shares, but that the court filed against the above tax authority against KimA et al.

[Ground of Recognition] Facts without dispute, each of the evidences set forth above, Gap evidence 2-1 through 5, Gap evidence set forth in 3-2, Gap evidence set forth in 6-1 through 8, Gap evidence set forth in 7-1 through 6, Gap evidence set forth in 15, 16, Gap evidence set forth in 17-1, 2, Gap evidence set forth in 17-1, 19, 20, Eul evidence set forth in 2 through 5, Eul evidence set forth in 7-1, 2, Eul evidence set forth in 8 through 11, 14, and 15, the purport of the whole pleadings, and the purport of the whole pleadings

C. Regarding the assertion of fraudulent use of name

1) Relevant legal principles

The provision on deemed donation under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act shall apply in cases where a real owner or a nominal owner makes registration, etc. in the future under an agreement or communication with the nominal owner when the transfer or exercise of the right requires the transfer or exercise of the right, and such registration is not applicable in cases where the real owner or the nominal owner unilaterally makes registration by using the nominal owner, irrespective of the intent of the nominal owner (see, e.g., Supreme Court Decisions 84Nu748, Mar. 26, 1985; 95Nu13531, May 31, 196). In such cases, if the tax authority proves that the real owner is different from the nominal owner, it shall be proved that the unilateral act of the real owner, regardless of the intent of the nominal owner (see, e.g., Supreme Court Decisions 89Nu3465, Feb. 27, 190; 90Nu5023, Oct. 10, 1990).

2) Whether the substantial shareholder of the instant shares is identified

The Plaintiffs asserted that the actual shareholder was not the actual shareholder of the instant shares, and that the actual shareholder was Kim KK and leL, not the KimA, etc. who is a party to the title trust agreement with the Plaintiffs, and that they were abused their names.

Therefore, I first examine whether the actual shareholder of the instant shares is Kim KK and L, not KimAA, etc.

According to the above facts, the JJ’s L, etc. actively participated in the financing of the purchase of warrant certificates with respect to the instant shares, and actively recommended KimA, etc. to make an investment in new shares with respect to the instant shares, after acquiring the instant shares under the names of the Plaintiffs, the JJ supported the share price and requested KimA, etc. to sell shares, etc., and a significant portion of the purchase price is deemed to have been transferred to the JJ’s position.

However, in full view of the following facts and circumstances acknowledged by the aforementioned evidence, KimA, etc. is the actual shareholder as the subject of investment and calculation of the instant shares. Furthermore, since the fact that there was an agreement on title trust between the Plaintiffs, who are nominal shareholders, and KimA, etc. is also the Plaintiffs, the instant taxation that the Plaintiffs deemed to have donated the instant shares by KimA, etc. in accordance with Article 45-2 of the former Inheritance Tax and Gift Tax Act is lawful.

① The instant investment arrangement does not simply lend the acquisition of new shares to KimK, leap, or JJ, etc., by KimA, etc., but also directly invests in the new shares of JJ. The instant investment agreement does not specify interest, etc. in addition to the terms and conditions of investment, and in fact, KimA stated that the Plaintiff would have discussed the interests of the Financial Supervisory Service.

② The acquisition and transfer of the instant shares was conducted in the name of the Plaintiffs from the purchase of the warrant certificates to the final transfer of the shares, and the acquisition funds of the instant shares were invested by KimA, etc. as seen above. In the process of such acquisition and transfer, KimA, etc. did not merely lend the name or funds, but KimA, etc. bears fundamental investment risks arising from the stock price fluctuation. Under the investment agreement of this case, KimA, etc., even under certain terms and conditions of the investment agreement of this case, it stipulates that KimA, etc. may dispose of the shares without the consent of JJJ and recover the investment amount. The purchase funds of warrant certificates are procured by LL, but they are merely in accordance with the investment terms

③ It is true that the substance of the instant investment agreement is similar to that of the monetary loan agreement in that KimA et al. received only the principal and interest of the investment from the JJ. However, even so, in order to ensure the recovery of the investment funds of KimA et al. between KimA and the JJ, KimA et al., the nominal holders of the shares taken over with the investment funds shall be KimA et al., and in fact, KimA et al. opened the account in the names of the Plaintiffs, who are their relatives or subordinate employees, and opened the account in the names of their respective individuals, and possessed their passwords, and directly managed the relevant securities deposit account, such as making direct transactions orders.

④ Even if a considerable portion of the transfer price of the instant shares was delivered to the JJ, it may be deemed that the instant investment agreement was merely a mere loan agreement from the beginning, even if the distribution of profits to KimA et al. was determined to the extent of interest on investment funds as a result of internal settlement of accounts, etc.

3) The case where Kim KK, L, etc. is deemed to be a substantial shareholder

Even in cases where the purchase fund of warrant certificates was raised, the decision to sell the shares of this case was made, and the substantial part of the transfer proceeds was acquired, KimK and Y should be viewed as the substantial shareholder of the shares of this case, in full view of all the following circumstances acknowledged by the facts and evidence mentioned above, it is deemed that there was an implied title trust agreement between them and the plaintiffs.

① The Plaintiffs are the geographical owner of KimD (Plaintiff SongB) or building manager (Plaintiff HH) or the staff of theCC (other Plaintiffs). Therefore, the Plaintiffs had been well aware of the fact that KimA et al. invested and recovered funds in the course of operating theCC that operates a credit business by KimA et al., and consented to the use of the securities consignment account in the names of the Plaintiffs to the KimA et al.

② In order to avoid legal restrictions following the conclusion of the instant investment agreement, KimA, etc.: (a) opened each securities deposit account in the names of the Plaintiffs with the consent of the Plaintiffs; and (b) made the instant shares deposited in accordance with the instant investment agreement. Therefore, the entry of the instant shares into each of the said securities deposit accounts in the names of the Plaintiffs may be subject to the agreement on title trust between the Plaintiffs and KimA, etc.; (c) in particular, Plaintiff Park Jong-G directly received a request to sell part of the instant shares from LL and notified it to KimA, etc.; and (d) issued an order to sell them to the employees of the securities company.

③ If the actual shareholder of the instant shares is Kim KK and LL for the reasons as seen earlier, it is merely based on the assessment of the actual shareholder of the shares entered into each of the said securities depository accounts according to the intent of the Plaintiffs. If the assessment results show that Kim KK and L are a substantial shareholder, the use of the Plaintiffs’ names in Kim KK and L is deemed to have been based on the consent of the Plaintiffs.

④ In contrast, the mere fact that the Plaintiffs were unaware of Kim K and L, the other party to the investment in KimA, etc., such as Kim K and L, could not be deemed to have stolen their names, and there is no other evidence to acknowledge it.

D. Whether there is no purpose of tax evasion

1) Relevant legal principles

The purpose of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to realize tax justice by effectively preventing the title trust act committed by the actual owner of an asset in the name of another person for the purpose of tax avoidance. Therefore, if the title trust act was recognized to have been conducted for another purpose, not for tax avoidance, and it is merely a minor reduction of tax incidental thereto, it cannot be deemed that such title trust act had the purpose of tax avoidance. However, in light of the legislative intent as seen earlier, it cannot be deemed that a donation cannot be deemed as a donation only when the purpose of tax evasion is not included in the purpose of title trust. Thus, if it is deemed that there was a purpose of tax avoidance in addition to the other purpose, it shall be deemed that the donation still becomes deemed a donation (see Supreme Court Decision 2011Du10232, Feb. 21, 2017).

Meanwhile, the burden of proving that there was no objective of tax evasion may be proved by means of proving that there was no objective of tax evasion, not the purpose of tax evasion. However, as the nominal owner who bears the burden of proof, there was an obvious objective of tax evasion to the extent that there was no objective of tax evasion in the title trust, and there was no objective of tax evasion at the time of the title trust or in the future, and there was no objective and objective evidence that there was no tax evasion at the time of the title trust (see, e.g., Supreme Court Decisions 2004Du1220, Sept. 22, 2006; 2012Du546, Nov. 28, 2013).

2) Determination on the instant case

In full view of the following circumstances which are acknowledged by comprehensively taking account of the evidence and the overall purport of the arguments as seen earlier, it cannot be deemed that the Plaintiffs had a clear purpose irrelevant to the tax avoidance to the extent that there was no tax avoidance purpose in the title trust with respect to the instant shares. The Plaintiffs’ assertion on this part is without merit.

① The Plaintiffs asserted that each of the securities deposit accounts in the names of the Plaintiffs was stolen by Kim KK and L, and that they did not receive trust under their names, and that there was no purpose of tax evasion. In title trust of the instant shares, the Plaintiffs did not assert and prove that there was any other purpose than tax evasion in title trust.

② As of December 1, 2000, JJ issued the total number of shares is 00,00,000 shares, the number of shares transferred by KimA in 2001 is 0,000 shares, and the number of shares transferred by KimD in 2001 is 0,00,000 shares, 1X. XX%, and 200 percent of the total number of shares issued as of the end of the immediately preceding business year, exceeds 5% of the total number of shares as of the end of the immediately preceding business year, Article 94(1)3(a) of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014; hereinafter the same shall apply) and Article 157(4) of the Enforcement Decree of the same Act, and in such cases, the transfer income tax rate of 20% is applied in accordance with Article 104(1)11(c) of the former Income Tax Act.

However, by the title trust of the shares of this case to the plaintiffs, KimA et al., the ratio of possession of KimA and KimD 3. XX per cent(=00,000,000 x 100) did not meet the requirements of major shareholders under the former Income Tax Act and the Enforcement Decree of the same Act. In the case of non-major shareholders, 10% of transfer income tax under Article 104(1)11(b) of the former Income Tax Act applies to the case of non-major shareholders.

4. Conclusion

The plaintiffs' claims against the defendants are dismissed on the grounds that all of them are without merit, and the judgment of the court of first instance is unfair on the grounds that it has different conclusions, so the appeal by the defendants is accepted, and all of the claims against the defendants are dismissed.