명의신탁에 있어 조세회피와 상관없는 뚜렷한 목적과, 당시에나 장래에 회피될 조세가 없다는 점을 입증하여야 함.[국승]
In title trust, it should be proved that the obvious purpose of tax avoidance and that there is no tax avoidance at the time or in the future.
Although the Plaintiff asserts that the name was stolen, it cannot be deemed that the Plaintiff was conducted by unilateral act, such as an auditor, and it is difficult to view that the change of entry was made for a clear different purpose, which is irrelevant to the purpose of tax avoidance, or that there was no tax to be avoided in the future at the time of transfer of entry or transfer of ownership, to the extent that there was no doubt.
Article 45-2 of the Inheritance Tax and Gift Tax Act
2015Guhap21262 Revocation of Disposition of Imposing gift tax
KimA
BB Director of the Tax Office
on 14, 2016
on 18, 2016
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant imposed the gift tax on the Plaintiff on June 10, 2014 by the OO, OO.O.O.O. on the Plaintiff, and the imposition of the gift tax by the OO, OO.O.O. on July 1, 2014 against the Plaintiff is revoked.
1. Details of the disposition;
A. The relationship between the parties
1) On March 29, 2012, EU Co., Ltd. (hereinafter “ACC”) is a company that mainly engages in design and service business of semiconductors, electronic equipment, related facilities, etc. as its main objective business, and the AF (the mutual name of December 5, 201 was changed to “EEEE Co., Ltd.; hereinafter “AF”) also engages in design and service business of semiconductors, electronic equipment, related facilities, etc. as its main objective business.
2) The Plaintiff’s East Kim XX from October 22, 2007 to October 22, 201, and March 31, 201
From June 26, 2009 to October 31, 2011, the Plaintiff served as the representative director of the ACC. Meanwhile, the Plaintiff served as the auditor of the ACC from August 25, 2011 to March 31, 2013.
B. Change of each of the instant shares
1) 26,563 shares, among the shares issued by AF on October 14, 2009, held by AF (hereinafter referred to as “AF”).
The transfer of title was made in the name of the plaintiff with respect to the 1st share, and the acquisition price of the 1st share was paid by Kim XX.
2) Kim XX acquired the shares 106,250 shares issued toCC from AF (hereinafter referred to as "the shares 2 shares of this case"). On October 1, 201, Kim XX reported capital gains tax on the transfer of shares 106,250 shares to the Plaintiff as the shares 1 and 2 shares of this case. The transfer of shares 2 shares was made in the name of the Plaintiff for the second shares of this case.
C. Imposition of gift tax of this case
1) The Defendant, from September 10, 2012 to September 28, 2012, shall conduct an integrated investigation and investigation of corporate tax against ACC.
After examining the source of the acquisition fund for the instant 1 shares, it was confirmed that the Plaintiff paid the transfer price of the instant 1 shares, the transfer price of which is changed from ASEAN, to the Plaintiff. On June 10, 2014, the instant 1 shares determined that Kim XX was the shares trusted in trust with the Plaintiff and issued a disposition imposing an OO or OOO.O.O.O. (including additional tax) on the Plaintiff (hereinafter referred to as “instant 1 disposition”).
2) Meanwhile, from October 1, 2013 to November 9, 2013, Sungdong Tax Office’s transfer income to Kim XX
Then, on July 1, 2014, the Defendant issued a gift taxO,OO.O.O.O.O.(including additional tax) on the Plaintiff (hereinafter referred to as “instant No. 2 disposition”) on the following grounds: (a) the instant 2 shares were deemed to be the shares held in title trust by the Plaintiff; and (b) as a result, the instant 1 and 2 shares were deemed to be the shares held in title trust by Kim XX; and (c) accordingly, the Defendant issued a disposition imposing gift taxO,O.O.O.O.(including additional tax) on the Plaintiff (hereinafter referred to as “instant disposition”).
D. Plaintiff’s appeal
The Plaintiff is dissatisfied with each of the dispositions of this case, respectively, to the Tax Tribunal on September 3, 2014 and September 26, 2014.
Although the appeal was filed, each of the above appeals was dismissed on January 9, 2015.
[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 2 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Gap evidence Nos. 10, Eul evidence Nos. 1 through 5, Eul evidence Nos. 7, the court's LL Tax Office and SS Tax Office's order of submission of each taxation information against the LL Tax Office and SS Tax Office
2. Determination on the legitimacy of the instant disposition
A. The plaintiff's assertion
1) A “stock purchase agreement” which states that the Plaintiff purchased each of the shares of this case.
Written(Evidence A No. 3) and “Stock sales contract (Evidence A No. 4-1)” have been prepared by misappropriation of the Plaintiff’s name regardless of the Plaintiff’s intention, and the Plaintiff did not receive title trust of each of the instant shares.
2) Even if the Plaintiff received a title trust of each of the instant shares, the instant shares No. 1
In the process of the loan review, the AF owned 100% of the ACC’s shares and distributed them after being pointed out that the ownership shares are excessively concentrated. In the case of the 2nd shares, in order to avoid incorporation of AF into the affiliate of the KF in the process of transferring AF’s shares to the non-party KG, the AF’s shares are transferred to the non-party KG, and all of them were conducted without the purpose of tax avoidance.
3) Therefore, each of the instant dispositions is unlawful.
B. Relevant statutes
The entries in the attached Table-related statutes are as follows.
C. Determination
1) Legal principles
A) the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201);
Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) applies in cases 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, the transfer or exercise of the right of which requires registration, etc., so the said provision may not apply in cases where a registration, etc. is made unilaterally under the name of the nominal owner regardless of the intent of the nominal owner. In such cases, the tax authority may only prove that the actual owner is different from the nominal owner, and the verification that the registration, etc., of the nominal owner was made under the unilateral act of the actual owner regardless
See Supreme Court Decision 2007Du15780, etc.
B) In addition, the legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to use the title trust system.
Inasmuch as an exception to the substance over form principle is recognized in the purport of effectively preventing tax avoidance and realizing tax justice, the proviso of the same Article can only be applied to a case where 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, the fact that there was no purpose of tax avoidance may be proven by means of proving that there was no purpose of tax avoidance, other than the purpose of tax avoidance. However, the nominal owner who bears the burden of proof has an obvious purpose of tax avoidance, which is irrelevant to the tax avoidance, to the extent that it is recognized that there was no objective of tax avoidance in the title trust, and that there was no tax avoidance in the future at the time of the title trust or in the future, it is necessary to prove that there was no objective and objective evidence that there was no purpose of tax avoidance in the title trust (see, e.g., Supreme Court Decision 2010Du24968, Mar. 28, 2013).
2) Determination
A) Whether a transfer is made regardless of the Plaintiff’s intent
The plaintiff does not dispute that he is not the actual owner of each of the shares of this case. The plaintiff's transfer under the name of the plaintiff was made as an unilateral act of Kim XX, regardless of the plaintiff's intention. But it is difficult to believe that the plaintiff's transfer of shares was made under the name of the plaintiff 2, No. 6-2, No. 7, and witness testimony, and there is no other evidence to acknowledge that the plaintiff's transfer of shares was made under the name of the plaintiff 2, No. 4-2, No. 3, and No. 6-1, and there is no other evidence to acknowledge that the plaintiff's transfer of shares was made under the name of the plaintiff 1, No. 30, Oct. 14, 2009. According to the above evidence and the purport of the pleading, the plaintiff's transfer of shares to the purport that the plaintiff's transfer of shares was made under the name of the plaintiff 2, an integrated title trust (No. 7, No. 2000, Jul. 4, 201201).
B) Whether the purpose of tax avoidance exists
In addition, as to whether there was no tax avoidance purpose or not, it is difficult to believe that the testimony of a witness dedicated to the plaintiff's above assertion is difficult, and the testimony of the witness dedicated to Gap's 3 through 9, Gap 11, and the result of the order of submission of tax information by the LL Tax Office and SS Tax Office to the LL Tax Office and the LL Tax Office of this court is carried out for a clear different purpose from that of the plaintiff's name, and it is insufficient to view that there was no tax avoidance or tax avoidance at the time of transfer or transfer, to the extent that there is no doubt, and there is no other evidence to acknowledge it.
4) Sub-determination
Therefore, each disposition of this case cannot be deemed to be erroneous as alleged by the plaintiff.
3. Conclusion
Therefore, the plaintiff's claim is dismissed in entirety as it is without merit. It is so decided as per Disposition.