Article 14 (Real Taxation under Framework Act on National Taxes)

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

A. From March 20, 2006 to July 26, 2006, the director of the Seoul Regional Tax Office investigated the stock change of ○○ Costa Co., Ltd. (the trade name before being changed on March 30, 2005 was a “stock company”; hereinafter “foreign company”) and clarified the following facts and notified the Defendants of the details as taxation data.

(1) On April 23, 2003, 200, 1,025,000 shares of the non-party company, which is the representative director of the ○○ Telecom Co., Ltd. and the de facto major shareholder of the non-party company, transferred 1,996,20 shares of the non-party company, each of 300 shares in title trust in the name of 1,025,00 shares of the non-party company, 371,200 shares in the name of the U.S. head office, ○○, and Jinduk, respectively (hereinafter referred to as "share

(2) On June 20, 200, ○○ School trusted 371,200 shares, among the shares transferred at issue on June 20, 2003, each transfer of ownership of 101,200 shares in the name of the Plaintiff Seocho-do, and 270,000 shares in the name of the Plaintiff Jeonsung, respectively (hereinafter “instant shares”).

(3) On February 2, 2004, as seen earlier, ○○ had each title trust in the front school and Jinduk, among the transferred shares, 300,000 shares out of the outstanding shares, and 100,000 shares out of the shares held in a title trust in the future of the Plaintiff Seo-young, were collectively transferred 70,000 shares out of the shares held in a title trust to the representative director of the non-party corporation, and 300,000 shares out of the shares that were transferred without compensation from ○○ in the middle school and 400,000 shares in the middle in the middle of ○○, respectively.

(4) On February 13, 2004, ○○○○ Holdings Co., Ltd. (hereinafter “○○○”) transferred KRW 1,243,000, including shares of Nonparty Company 218,000, in total, KRW 1,243,000, including shares of Nonparty Company 218,000.

B. After being notified of the above taxation data, the Defendants applied the provisions of Article 41-2 of each Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003; hereinafter referred to as the "Act") to the Plaintiffs as donated property by deeming the shares of this case which are title trust from the largest level of study as donated property, and imposed each gift tax on the Plaintiffs as stated in the purport of the claim (hereinafter referred to as the "instant taxation disposition").

[Ground of recognition] Facts without dispute, Gap 2,9,10,15,16, 16, Eul 1-2,3, and Eul 3, the purport of the whole pleadings

2. Whether the disposition of imposition is lawful.

A. The plaintiffs' assertion

For the following reasons, the Defendant’s instant disposition of imposition is unlawful.

(1) As the president of the non-party company’s employment president, ○○ is merely a transfer of outstanding shares from ○○ upon the condition that the non-party company’s non-party company’s non-performing loans were embezzled, and even from that point of time, the fact that ○○○, the real owner of the non-party company’s employment president, embezzled the large amount of company’s funds, and the non-party company’s business normalization was subsequently confirmed, and the non-party company’s non-party company’s business normalization was transferred from ○○ upon its genuine intent. As part of the realization of the above condition, the plaintiffs’ acquisition of the shares of this case, which is part of the transferred shares from ○○ level, was merely allowed to use the name, and the total amount

(2) Since ○○ School agreed on the condition that the non-party company’s non-performing loans and normalizes its management by taking over the outstanding shares from ○○ School, its substance should be deemed as an onerous donation. Therefore, in calculating the gift tax base, the portion of its burden should be deducted. However, the Defendant’s disposition of this case did not consider this point.

(b) Related statutes;

Article 41-2 (Presumption of Donation of Title Trust Property)

Article 14 (Real Taxation under Framework Act on National Taxes)

C. Determination

(1) Details and purpose of legislation of Article 41-2 of the Act

(A) In case where the actual owner and the nominal owner are different from the property (excluding land and buildings) requiring a registration, etc. for the transfer or exercise of the right, notwithstanding the provisions of Article 14 of the Framework Act on National Taxes, the value of the property shall be deemed to have been donated to the actual owner by the nominal owner on the date of registration, etc. as the nominal owner (in case of the property whose transfer is required, it refers to the date following the year in which the date of acquisition of the ownership falls.) but the value of the property shall not be deemed to have been donated to the actual owner; but (i) in case where the property is registered, etc. in another person's name or the ownership is not transferred to the actual owner who has acquired the ownership without any purpose of tax avoidance (Article 1) or (ii) in case where shares or equity shares (hereinafter referred to as "stocks, etc.") entered or transferred to the actual owner under the name of another person pursuant to the trust or agreement before January 1, 199.

On the other hand, the main text of Article 41-2 (2) of the Act provides that where a transfer is made in the name of another person, where a transfer is not made in the name of the actual owner, or where a title of stocks, etc. is not converted in the name of the actual owner during the grace period under subparagraph 2 of paragraph (1), it shall be presumed that there exists a purpose of tax avoidance, and the "tax" under Article 2 (5) (1) 1 and (2) means the national tax and local tax under subparagraphs 1 and 7 of Article 2 of the Framework Act on National Taxes and the customs duties

(B) The legislative intent of Article 41-2(1) of the Act is to effectively prevent the act of tax avoidance using the title trust system and realize the tax justice. As such, the proviso of the same Article can be applied only if the purpose of tax avoidance is not included in the purpose of the title trust, and the burden of proving that there was no purpose of tax avoidance in the title trust exists. Therefore, with respect to the fact that there was no purpose of tax avoidance, it may be proved by the method of proving that there was another purpose, not the purpose of tax avoidance. However, as the nominal owner who bears the burden of proof, the nominal owner who bears the burden of proof has a clear purpose that is not related to the tax avoidance to the extent that there was no purpose of tax avoidance in the title trust, and has to prove that there was no tax avoidance in the future at the time of the title trust or in the absence of tax avoidance (see, e.g., Supreme Court Decisions 2004Du1421, Jun. 11, 2004; 2012Du124, Sept. 24, 2006).

(2) Judgment on the plaintiffs' assertion

(A) As to the first argument

The majority of ○○ has taken over the shares of this case from ○○ Uniform without compensation, and each transfer of the shares of this case to the plaintiffs under the understanding of the plaintiffs does not conflict between the parties. Thus, the transfer of the shares of this case to the plaintiffs is a title trust deemed to be a donation pursuant to Article 41-2(1) and (2) of the Act, and therefore, the transfer of the shares of this case to the plaintiffs is subject to gift tax regardless of whether the transfer of the shares of this case to the plaintiffs is actually a gift contract made according to the plaintiffs’ intention of increase of the amount of gift tax. Accordingly, the first argument of the plaintiffs on different premise is without merit.

(B) As to the second argument

As seen earlier, the transfer of ○○ to the Plaintiffs of the instant shares constitutes a title trust deemed as a gift under Article 41-2(1) and (2) of the Act. In this case, the Plaintiffs’ purpose of tax avoidance is presumed to be presumed, and thus, the Plaintiffs are responsible to prove that there was no purpose of tax avoidance.

However, according to Gap evidence Nos. 1, 2, 3, 1 through 3, 5 through 7, the above evidence Nos. 1, 1, 2, 4-1, and 7 were stated. On Apr. 23, 2003, ○○○ and ○○○○ cooperates with the highest school so that the non-party company may be exempted from civil and criminal liability with respect to the act of embezzlement, etc., which is a cause of insolvency. The highest school transferred ○○ within the conditions of management normalization of the non-party company without compensation and agreed to transfer ○○○'s outstanding shares to the majority school (hereinafter "the agreement of this case"), and ○○ was not subject to the above evidence No. 200, 2000, 200, 300, 200, 200, 30, 20, 206, 30, 20, 30, 20, 206, etc. of this case's penal punishment.

3. Conclusion

Therefore, the defendant's disposition of this case is legitimate, and all of the plaintiffs' claims are dismissed, and it is decided as per Disposition.