[2] The case holding that in a case where Gap and Eul, a relative Eul and Eul purchased the shares of the company Byung for the purpose of acquiring the shares of the company Byung (the second shares) in the name of non-listed corporation Byung by using the merger procedure of the stock-listed corporation Byung and the non-listed corporation Byung and transfer the title to the future; Byung purchased the first shares with no company, etc.; Byung purchased the first shares at the same time with no company, and issued new shares with new shares using the purchase price as the purchase price for new shares was made; and Byung merged the company Byung with other non-listed corporation after the second shares were allocated with the purchase price for new shares;

1. As to the title trust of the first and second shares in this case

A. Based on the evidence adopted, the lower court determined that: (a) Nonparty 1 and Nonparty 2 were difficult to view Nonparty 2’s initial acquisition of the instant shares under the name of Nonparty 1, the corporation listed on the title trust of this case, and Nonparty 2, the non-party 1, the corporation listed on the title trust of this case, using the merger process for films (hereinafter “ELD”) of the non-listed corporation; and (b) transfer of title to Nonparty 1, the Plaintiff 2, who purchased the instant shares under the name of Plaintiff 1, 2, 3, and 4, for the purpose of holding the instant shares under the name of Plaintiff 1, Plaintiff 2, and Plaintiff 4; and (c) Nonparty 2, the Plaintiff and Nonparty 1, the title holder of the instant shares, who did not actually purchase the instant shares under the name of Nonparty 1, the acquisition of the instant shares under the name of Nonparty 2, the title trust of this case, as the acquisition of the instant shares under the name of Nonparty 1, the title trust of this case, were not subject to the instant shares under actual title trust of this case.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) The legislative intent of Article 45-2(1) of the Inheritance and Gift Tax Act is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, if the title trust was recognized to have been made for any reason other than the tax avoidance purpose, and it is merely a minor reduction of tax incidental to the title trust, it cannot be readily concluded that there was "the purpose of tax avoidance" in such title trust. However, only when the purpose of the title trust is not included in the purpose of the tax avoidance, it cannot be deemed that there was a deemed donation by applying the proviso to the above provision, and it cannot be said that there was an intention of tax avoidance if there was an intention of tax avoidance. In addition, the burden of proving that there was no purpose of tax avoidance is a nominal person who asserts it (see, e.g., Supreme Court Decision 2007Du17175

(2) According to the reasoning of the judgment below and evidence duly admitted by the court below, ① Nonparty 1 participated in the shares offering issued on October 31, 2005 in the name of Nonparty 5, and acquired 2,439,025 shares in the name of Nonparty 5, etc. up to KRW 5.4% of the total shares issued by HD 14,941; Nonparty 2 participated in the above shares offering and directly acquired 1,219,512 shares in the name of the above shares offering; ② On the other hand, Nonparty 1 and Nonparty 2 did not constitute the above shares offering under the name of HD 20, 400, 600, 600, 600, 1000, 206, 206, 206, 206, 30,000,000,0000,000,0000,000,000,000.

(3) Examining these facts in light of the legal principles as seen earlier, it is difficult to view that there was a purpose of tax avoidance in the title trust of the first stock for the following reasons. In other words, taking into account the process and period of title trust of the first stock, the composition and management status of the shareholders of ELN film, the process of a film and the period used for the merger and merger of ELN, etc., Nonparty 1 and Nonparty 2 held the title trust of the first stock of this case to the above plaintiffs, it is recognized that the title trust of Nonparty 1 and Nonparty 2 was for acquiring the second stocks of this case, which are the stocks issued by NAN, and it cannot be deemed that Nonparty 1 and Nonparty 2 had the purpose of evading the secondary liability for tax payment as an oligopolistic shareholder, acquisition tax, deemed acquisition tax, or comprehensive income tax under the dividends of ELN at the time of the above title trust. In addition, even if the title trust was made based on the title trust of the first stock of this case, it is not likely that the title trust of this case only occurred due to the title trust of this case 1 stock.

On the other hand, the title trust of the second stocks of this case is a separate title trust from the title trust of the first stocks of this case for the following reasons. In other words, inasmuch as the above plaintiffs concluded a share sale contract with the content of transferring the first stocks to Ronana, and they acquired the second stocks of this case from Ronana with the purchase price as the purchase price for new stocks, it cannot be deemed that the second stocks of this case are a mere alteration of the first stocks of this case as a new property different from the acquisition price for the first stocks, and furthermore, the above plaintiffs' acquisition of the second stocks of this case under their names should be deemed to have a separate opinion among the above plaintiffs, 1, and 2. Thus, it is reasonable to view that the second stocks of this case were a separate title trust from the title trust of the first stocks of this case. Furthermore, considering the fact that the second stocks of this case were a stock-listed corporation with the purpose of tax avoidance related to the transfer of the first stocks of this case as the transfer price for the second stocks of this case, it is reasonable to view that the second stocks were a tax avoidance purpose.

(4) Nevertheless, the lower court determined otherwise that the main sentence of Article 45-2(1) of the Inheritance and Gift Tax Act cannot be applied on the ground that the title trust of the instant shares No. 1 is subject to the application of the main sentence of Article 45-2(1) of the Inheritance and Gift Tax Act on the premise that the purpose of tax avoidance is recognized, and that the title trust of the instant shares No. 2 was not deemed to have existed with respect to the title trust of the instant shares. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of the purpose of tax avoidance, thereby adversely affecting the conclusion of the judgment. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of the purpose of tax avoidance, thereby adversely affecting the conclusion of the judgment. The

2. As to the title trust of the third stock of this case

In light of the circumstances acknowledged by the adopted evidence, the lower court determined that it is reasonable to view that Nonparty 1 trusted the third stocks of this case to Plaintiff 1 and Plaintiff 5, and accordingly, it is difficult to view that there was no purpose of tax avoidance, on the ground that it was possible to avoid capital gains tax on the said stocks.

In light of the records, the fact-finding and determination by the court below are justifiable, and contrary to the allegations in the grounds of appeal by the above plaintiffs, there were no errors of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or failing to exhaust all necessary deliberations, etc. (However, as seen earlier, insofar as the grounds of appeal by both parties concerning the title trust of shares 1 and 2, as alleged in the grounds of appeal by the plaintiff 1, as to the case of a re-donation within 10 years, the previous donated property should be calculated again in accordance with Articles 47 (2) and 58 of the Inheritance Tax and Gift Tax Act, which provide that the previous donated property should be added to the taxable value of the gift tax, so the above

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against Plaintiffs 1, 2, 3, and 4 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by Plaintiffs 5 is dismissed. The costs of appeal by Plaintiffs 5 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)