비상장주식의 명의신탁에 대한 증여의제[국승]
Review Donation 2013-0029
deemed donation of title trust of unlisted stocks
The plaintiff's assertion that the imposition of gift tax based on the constructive gift for title trust is improper because the plaintiff was merely a person who did not know any circumstance at the request of the truster as a trust person and his/her employee and did not exercise his/her actual right.
Donation of trust property under Article 41-2 of the Inheritance Tax and Gift Tax Act
2013Guhap2827 Revocation of Disposition of Imposition of Gift Tax
Song AA
Head of the High Tax Office
June 17, 2014
July 8, 2014
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s imposition of the gift tax on December 13, 2012 against the Plaintiff on December 13, 2012 is revoked, respectively. < Amended by Presidential Decree No. 20090, Dec. 13, 2012>
1. Details of the disposition;
"A. BB environmental industry was established on April 23, 2001, and the KimCC actually established and operated it, and the Plaintiff, a member of KimCC, worked for BB environmental industry from 2001 to 2012," and "BB environmental industry was conducted with capital increase on October 3, 2002 and December 31, 2003, and accordingly issued shares were transferred under the name of the Plaintiff (hereinafter collectively referred to as "the shares in this case"). (c) The director of Central Tax Office determined that the actual owner of the shares in this case was the owner of the instant case, and the Plaintiff was the title trust of the instant shares as a result of the investigation on shares in BB environmental industry around September 201, 201 and notified the Defendant of the taxation data in this case.
D. Accordingly, the Defendant respectively decided and notified the Plaintiff on December 13, 2012 by applying the provision on deemed donation of title trust property under Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter “former Inheritance Tax and Gift Tax Act”) to the Plaintiff on December 13, 2012, “OOO of the gift tax reverted to the year 2002, and OO of the gift tax reverted to the year 203 (hereinafter “instant disposition”).” (E) The Plaintiff dissatisfied with the instant disposition, filed a request for review with the National Tax Service on March 4, 2013, but was dismissed on June 12, 2013.
Facts without any dispute, Gap's 1 through 4, Eul's 1 through 4 (including each number), the purport of the whole pleadings, and the purport of the whole pleadings.
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The KimCC arbitrarily used the name of the Plaintiff to change the name of the instant shares in the name of the Plaintiff, and the Plaintiff was unaware of this fact. It is unlawful for the Defendant to take the instant disposition against the Plaintiff by applying the provision on constructive gift of title trust property under Article 41-2 of the former Inheritance Tax and Gift Tax Act.
B. Relevant statutes
The entries in the attached Table-related statutes are as follows.
C. Determination
The provisions on deemed donation of trust property under Article 41-2(1) of the former Inheritance Tax and Gift Tax Act shall apply to a case where the actual owner and the nominal owner enter into a registration, etc. in the name of the nominal owner by agreement or communication with respect to the property that requires the transfer or exercise of the right, etc., and such registration, etc. is not applicable to a case where the actual owner enters into a registration, etc. in the name of the nominal owner unilaterally regardless of the intent of the nominal owner. In this case, the tax authority must prove only that the actual owner is different from the nominal owner, and the verification that the registration, etc. of the nominal owner was made in the unilateral act of the actual owner regardless of the intent of the nominal owner should be made by the nominal owner (see, e.g., Supreme Court Decision 2007DuOOO, Feb. 14, 2008). Moreover, the title trust relationship is not necessarily established by an express contract between the truster and the trustee, but may also be established by implied agreement (see, e.g.
In light of the above legal principles, the plaintiff's assertion that the above facts were acknowledged as follows: (a) the plaintiff was aware of title trust of the shares of this case only after receiving the notice of tax investigation from the Central Tax Office; (b) the relationship between the plaintiff and the KimCC and the plaintiff continued to work for the BB environmental industry for not less than 10 years from the time of establishment of the BB environmental industry; and (c) the plaintiff's husband KimD was not an employee of the BB environmental industry director (the representative director from April 23, 2004 to December 19, 2005) of the BB environmental industry director from 100 to 206, and there was no reason to believe that the plaintiff's allegation that the 2000 U.S. 200 U.S. 20 U.C. 21 had no evidence to find out that the 200 U.S. 20 U.C. 21 had no reason to find that the 201 U.S. 20333 of shares issued.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.