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red_flag_2(영문) 서울행정법원 2013. 03. 29. 선고 2012구합20830 판결

증여의사가 있었다고 보기 어려워 명의신탁된 것임을 전제로 한 처분은 적법함[국승]

Case Number of the previous trial

Seocho 2012,0515 (Law No. 112, 03.30)

Title

The disposition based on the premise that a title trust was made because it is difficult to view that there was a will of gift.

Summary

Considering the fact that there was no fixed intent of gift in light of the fact that there was participation in the procedures for acquiring shares or not receiving evidentiary documents therefor, that there was no knowledge that shares were distributed in their names, and that there was no exercise of rights or receipt of dividends by shareholders, the disposition based on the premise that the shares were held in title trust is legitimate.

Cases

2012Revocation of disposition of revocation of imposition of inheritance tax, etc.

Plaintiff

KimAA et al.

Defendant

The head of Yangcheon Tax Office

Conclusion of Pleadings

March 20, 2013

Imposition of Judgment

March 29, 2013

Text

1. All of the plaintiffs' claims are dismissed.

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

Purport of claim

The Defendant’s imposition of KRW 000 (including additional taxes) of inheritance tax (including additional taxes) against the Plaintiffs on June 14, 2011 and the imposition of KRW 000 (including additional taxes) of gift tax (including additional taxes) against Plaintiff KimB shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. From around 1981, JeongCC established and operated Diplomatic Co., Ltd. (hereinafter referred to as “DD”) and established HH (hereinafter referred to as “HH”) for the manufacture and sale of automation-related parts in accordance with the proposal of DD, which is the husband of the Plaintiff Kim Jong-A, and according to the proposal of DH.

B. On June 28, 2006, JeongCC deposited 000 won from its corporate bank account into the corporate bank account in the name of H on the same day, and deposited Y into the corporate bank account in the name of Y by dividing 500 won into 100 won, 200 won for the payment of shares, 200 won for the payment of shares, 300 won for plaintiffs KimA 000 won, and 200 won for the employees of D, and 300 won for the mostG and 000 won for D. The HaE withdrawn from 000 won on the same day, and deposited HaH’s stocks into the corporate bank account in the name of H. Accordingly, the shares were distributed in 7,800 weeks for HaCC, 6,000, 3000 Plaintiffs, 3000, 2000, 20G and 00.

(c) on September 23, 2008, the FF received 000 won (=00 won X 1,200), and transferred 1,200 shares in its name to Plaintiff KimB.

D. On October 17, 2009, the Plaintiffs reported and paid inheritance tax with the taxable value of the fixedCC’s inheritance as KRW 000.

E. From December 17, 2010 to 31 of the same month, the director of the Seoul Regional Tax Office conducted a survey on stock changes in HH with the Defendant, and (1) notified the Defendant of the sum totaling KRW 000 of the stock assessment value to the inherited property, and (2) the transfer of 1,200 shares in the name of the Party F to the Plaintiff KimB, to the Plaintiff KimB, on the following grounds: (a) the title trust between the F and the maximumG, respectively, was held by the Defendant; and (b) the transfer of 1,200 shares in the name of the Party F to the Plaintiff KimB was made by the Party KimB, and (c) the stock assessment value was made by the Party KimB.

F. Accordingly, on June 14, 201, the defendant imposed and notified each of the plaintiffs 00 won of inheritance tax and 000 won of gift tax on the plaintiff KimB (hereinafter referred to as "the disposition imposing inheritance tax of this case," and "the disposition imposing gift tax of this case," and "the combined disposition", and "the disposition imposing gift tax of this case," respectively). The plaintiffs filed an objection on August 31, 201, but the defendant was dismissed. The plaintiffs filed a request for judgment on December 27, 201, but were dismissed by the Tax Tribunal on March 30, 2012.

[Grounds for Recognition] Unsured Facts, Gap evidence 1, 2, 3 (including household numbers), and 14-4 through 11, Eul evidence 3, and 4, and the purport of the whole pleadings

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

A. The plaintiffs' assertion

(1) The F and LG donated HH stocks with the recognition of their contribution from PCC, and the instant disposition of inheritance tax on the premise that the instant shares are owned by PCC is unlawful.

(2) The Plaintiff KimB’s donation of HH stocks from the F, and some of the tax amount imposed on the instant gift tax under the premise that the Plaintiff KimB was donated from the F, is unlawful.

(b) relevant statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Of KRW 000, the cashier’s checks received by the FF from September 23, 2008 as the share transfer price, the cashier’s checks of KRW 000 were deposited into the account of Plaintiff KimA on February 17, 2009, and KRW 000 cashier’s checks were used on October 12, 2009 for the gift tax payment of Plaintiff KimB.

(2) FullF and tearG did not exercise shareholder rights, such as participation in the acquisition process of the instant shares, failure to receive relevant documents, and demand distributions.

(3) FullF and maximumG have not reported and paid gift tax on the instant shares.

(4) In the tax investigation conducted by the Seoul Regional Tax Office with regard to HH, the FF stated that ① the shares were known that they were transferred to another person in 2008, and that the shares were not owned by it. ② At the request of MaO, the shares were transferred. ② At the request of MaO, the said shares were transferred. ③ The reporting and payment of capital gains tax and securities transaction tax, etc. related to the transfer of shares was not done. ④ Although there was a fact that 00 won was deposited in the account in consideration of the transfer of shares, MaO stated that MaO used the passbook as a kind of passbook and was not used by MaO as it was entered and withdrawn. However, MaF stated that “The fact that Ma was unaware of the transfer of shares is unaware of the procedure and process of the sale of shares.”

[Reasons for Recognition] The whole purport of Gap, Eul, 12, 13, and Eul, and evidence 7, and 8, and the whole argument

D. Determination

Considering the following circumstances in the above facts, it is reasonable to see that Jung-CC was nominal trust of the shares of this case to the F and the lowestG, and each of the dispositions of this case based on the premise that the shares of this case were nominal trust is legitimate.

(1) FullF and LG have made a statement from regularCC that “Is itself with the intention to pay a part of the shares.” However, considering the fact that Iste participate in the stock acquisition procedure or did not receive documents evidencing the fact that I did not know that the shares were distributed in their names, and that there was no demand for the transfer of the shares before fullCC, it is difficult to see that Iste made the above horses, and even if Isteg made such remarks, it is difficult to see that there was a conclusive gift intention (it is possible that regularCC only intended to later transfer the shares by recognizing the contribution of fullF and the lowestGGG).

(2) The plaintiffs filed a lawsuit seeking confirmation of shareholders' rights against the largestG in the Incheon District Court Branch (201Gahap6280) but was dismissed on April 5, 2012. However, the lawsuit at issue was brought before filing an objection after the instant disposition, and the plaintiffs did not submit favorable evidence, such as a statement of answer (Evidence A13) to the dueF, requesting dueF as a witness, and the lawsuit at issue was closed on the first date for pleading, and the plaintiff did not appeal, and the civil lawsuit was not filed. The lawsuit at issue was brought against the plaintiffs, and the lawsuit at issue was brought against the plaintiffs, due to lack of proof of admission, and the uniform location (DD status, status, service, etc.) of the Financial Services Commission, and it cannot be considered that there was no other evidence to determine that the transfer price was against the empirical rule, solely on the ground that there was no other evidence that there was no other evidence to determine that the transfer price was in violation of the voting rule.

(3) The Plaintiffs asserted that “GE, and KimA, are considered as donations, and there is no reason not to regard the Plaintiff as donations,” but the Plaintiff KimA as a representative director of HH, and the Plaintiff KimA as the husband of the Plaintiff KimA (CCC’s fraud), and that it is difficult to view the Plaintiff KimA, KimA, and the Plaintiff KimA as the maximumGG in the same way.

(4) The F and LG have received shares of KRW 000 and KRW 000, but the reason is only asserted that “the meaning of recognizing the existing service was to recognize the existing service”, and the content and degree of the route has not been properly explained.

(5) The FF transferred the shares of KRW 60 million to Plaintiff KimB without any consideration (in light of the circumstances in which the transfer price was returned),

3. Conclusion

Therefore, the claim of this case is dismissed in entirety, and it is so decided as per Disposition.