Chuncheon District Court 2014Guhap4021 ( October 30, 2015)

early 2013 Middle 1407 ( October 21, 2013)

If the facts are the same, the change and addition of the reasons for the disposition are allowed.

If it cannot be deemed that the right of a shareholder is acquired, bypassing donation cannot be recognized, but if the factual relations between bypassing donation and the donation of title trust are identical, it is possible to change and add the reason for disposal of the donation of title trust

Legal fiction of donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

(Chuncheon)Revocation of revocation of the imposition of gift tax, 2015Nu207

AA

BB Director of the Tax Office

Chuncheon District Court Decision 2014Guhap4021 Decided January 30, 2015

October 12, 2015

November 23, 2015

The judgment of the first instance shall be revoked.

The plaintiff's claim is dismissed.

All costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 472,789,700 on February 5, 2013 against the Plaintiff was revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The reasoning for this part of the court's explanation is the same as the corresponding part of the judgment of the court of first instance, and thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The assertion

1) The plaintiff's assertion

Since the disposition of this case is erroneous as follows, it shall be revoked.

A) On September 30, 2009, when DDR unilaterally made the title of the instant shares owned by DD, DD on September 30, 2009, it merely transferred the instant shares in the name of DD to the Plaintiff by taking advantage of the Plaintiff’s name, i.e., the Plaintiff, and there was no agreement between CCC and the Plaintiff on the donation of the instant shares or the title trust. Therefore, it cannot be deemed that there was a gift of the instant shares or a title trust act.

B) Even if CCC donated the instant shares to the Plaintiff, the Defendant assessed the value per share of the instant shares as KRW 30,726 on the basis of the financial statements, details of report on the tax base for the business year from 2006 to 2008, based on the instant company’s financial statements, and details of the tax base for the corporate tax. However, the instant company’s disposition was made on the financial statements by falsely stating, for the purpose of obtaining a high rating from the specialized Construction Mutual Aid Association, the stock assets and inventory assets that do not exist for the purpose of obtaining a high rating from the specialized Construction Mutual Aid Association, and filed a return on the tax base for making profits, and was in capital potential from 2006 to 2008, and thus, there was no tax avoidance purpose

2) The defendant's assertion

A) The CCC may be deemed to have donated or held title trust to the Plaintiff the instant shares (the above assertion by the Defendant was added to the grounds for disposal, such as actual donation of shares, and the grounds for disposal, such as deemed donation of shares, but the two grounds for disposal are deemed to have the same factual basis, so such additional modification is possible.

B) Since the instant company had a distributable profit, there was a possibility that it could avoid a considerable amount of comprehensive income tax due to the title trust of the instant shares. Moreover, there was room for us to avoid the secondary tax liability of oligopolistic shareholders, so CCC had the objective of tax avoidance.

B. Relevant statutes

The statutes related to the instant case shall be as shown in the attached Form.

C. Determination

1) Whether CCC donated the instant shares to the Plaintiff

A) Facts of recognition

The reasoning for this part of the court's explanation is as stated in Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, since the reasoning for this part is the same as that for the judgment of the court of first instance.

B) Determination

Whether there was a gift tax subject to gift tax under the tax law should be determined by determining whether there was a share donation by acquiring shares with the intention to make a share donation and whether a shareholder has acquired the status as a de facto shareholder (see Supreme Court Decision 2004Do817, Jun. 29, 2006).

In light of the above legal principles, it is difficult to view that CCC established and operated the company in this case under its own name under the name of HH, Kim Jae-2, full transport, and door-to-door name, but changed the shares in the name of the Plaintiff in the name of DD, and then changed the shares in the name of E, FF. However, in the process of changing the name of DD, it is difficult to view that CCC did not obtain the consent of DD even in the process of changing the name of DD, 3D was changed into the name of D as a shareholder, and it is difficult to view CCC to view that CCC did not agree with the Plaintiff as the nominal owner of the shares, in light of the following facts:

2) Whether CCC has held title trust with the Plaintiff of the instant shares

A) Determination of the nominal owner of the instant shares

Unless the Plaintiff submits a list of shareholders, it is reasonable to view that the company of this case did not prepare the list of shareholders, unless there is any other assertion or proof as to the preparation of the list of shareholders. In such a case, the company of this case determines the nominal owner in accordance with Article 45(3) of the Inheritance Tax and Gift Tax Act. The company of this case prepared that the company of this case transferred 39,000 shares to the Plaintiff on September 30, 2009 in the statement on the change of shares, etc. in 2009, and submitted it to the Defendant. Since there is no dispute between the parties, the nominal owner of this case shall be deemed to be the Plaintiff [the Plaintiff is a reference document after the conclusion of pleadings, and it cannot be deemed that the actual owner and the nominal owner are different in the case of shares. This fact is that the Defendant, who is the tax office, prepared the list of shareholders, and even if the shares in this case were to have been transferred to the Plaintiff on the statement on the change of shares, the company of this case did not submit the list of shareholders.

B) Whether the instant shares were nominal by the Plaintiff’s intent

The provision on deemed donation under Article 45-2 (1) of the Inheritance Tax and Gift Tax Act shall apply in cases where a real owner or a nominal owner makes a registration, etc. in the future of the nominal owner by agreement or communication with respect to property which requires a registration, etc. for the transfer or exercise of rights. Therefore, in cases where the tax authority unilaterally makes a registration, etc. in the name of the nominal owner, regardless of the intent of the nominal owner, regardless of the intent of the nominal owner. In such cases, the tax authority must prove only the fact that the real owner is different from the nominal owner, and the burden of proving that the registration, etc. of the nominal owner was made in the unilateral act of the real owner regardless of the intent of the nominal owner should be borne by

In light of the above legal principles, in light of the following, CCC’s testimony of DD witness DD, Gap evidence Nos. 6 through 8, and the overall purport of the arguments, the fact that CCC did not obtain DD’s consent in the process of changing the nominal owner of the shares of this case from D to DD or changing D from D to eE or FF, the nominal owner of the shares of this case was forged and used in the process of changing the name of the Plaintiff from eE or FF, and became final and conclusive upon issuance of a summary order of KRW 3 million (Scheon District Court Decision 100,000,000, around October 00, 2000). However, in light of the fact that CCC’s son’s son’s son’s son’s son’s son’s testimony, and that at least the Plaintiff prepared for military service after completing military service, it is difficult to see that the Plaintiff’s nominal owner was either the Plaintiff’s intent or the title owner of this case.

Therefore, the plaintiff's above assertion is without merit.

3) Whether the title trust of this case had the purpose of tax avoidance

The legislative purport of Article 45-2(1) of the Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle in the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, the proviso to Article 45-2(1) is applicable only where the purpose of tax avoidance is not included in the purpose of title trust. In such a case, the burden of proving that there was no purpose of tax avoidance is the person asserting it (see, e.g., Supreme Court Decisions 99Du2192, Jul. 23, 199; 2003Du13649, Dec. 23, 2004)

Furthermore, as the nominal owner who bears the above burden of proof, there was an obvious objective irrelevant to the tax avoidance to the extent that it is deemed that there was no tax avoidance purpose in the title trust, and the fact that there was no tax avoidance at the time of the title trust or in the future is proved to the extent that the ordinary person is not doubtful, based on objective and conclusive evidence (see Supreme Court Decision 2004Du11220, Sept. 22, 2006). Whether there was such tax avoidance purpose or not should be determined at the time of the title trust of stocks at the time of the title trust, and it should not be determined as to whether there was any tax evasion thereafter (see Supreme Court Decision 2012Du546, Nov. 28, 2013).

In light of the above legal principles, in light of the following circumstances, it is difficult to view that the evidence submitted by the Plaintiff alone is insufficient to prove that there was a clear other purpose than, or there was no tax to be evaded in, the title trust of the shares of this case, the mere fact that there was no other purpose different from, tax evasion, and there was no other evidence to prove otherwise.

① As of March 1, 2009, the non-disposald retained earnings of the instant company are KRW 852,908,908. As of September 30, 2009, CCC trusted the instant shares to the Plaintiff. As of September 30, 2009, CCC 21%, HH 49%, and Plaintiff 30%, it is assumed that the non-disposald surplus earnings existed on March 1, 2009 even around September 30, 2009 (the non-disposald retained earnings of the instant company as of March 1, 2010 increased to KRW 1,227,794,586, which was more than 209, and thus, CCC appears to have avoided the Plaintiff’s share ratio as of September 30, 2009, and thus, H appears to have been applied to the Plaintiff and the Plaintiff’s share ratio in global income.

② Since the establishment of the instant company, the instant company defaulted on the national tax of KRW 445,186,380 at 49 up to September 30, 2009. The secondary tax liability of oligopolistic shareholders is limited to the amount calculated by dividing the delinquent amount by the total number of issued and outstanding shares, by the number of stocks which the relevant oligopolistic shareholder exercises a substantial right (Article 39 of the Framework Act on National Taxes). Since the Plaintiff completed military service at the time and prepares for reinstatement, it appears that there are almost little assets. Accordingly, due to the title trust of the instant shares, there was a possibility to be exempted from the secondary tax liability of oligopolistic shareholders as much as the amount equivalent to the Plaintiff’s shares out of the delinquent amount.

③ The Plaintiff alleged that CCC had known that the shares of the instant company, including the instant shares, were distributed in the name of a third party on July 24, 2001 due to the amendment of the Commercial Act to the effect that CCC was able to establish a stock company even with one promoter on July 24, 2001. However, it seems that the instant company was established on September 7, 2001 after the amendment of the Commercial Act, and that it was sufficiently aware that the said amendment of the Commercial Act was made in the process of offering new shares in several times thereafter.

④ The Plaintiff asserts that the amount of the national housing bond in 2006, the amount of the inventory asset in 2007, and the amount of the national housing bond in 2008 is falsely appropriated, and that the amount of the national housing bond in 2008 is deducted from the amount of the capital in the business year of 2008, the Plaintiff asserted that there is no tax avoidance from the title trust of the shares in this case due to capital erosion. However, the Plaintiff’s submission of the data alone is difficult to recognize that each of the above assets was falsely appropriated. In addition, the Plaintiff’s aforementioned assertion is premised on the premise that the amount of the national housing bond in 2006, the amount of the inventory asset in 207, and the amount of the national housing bond in 208 remains in the account book

D. Sub-committee

Therefore, the Plaintiff received the instant shares from CCC in title trust, and it is difficult to deem that there was no purpose of tax avoidance in such title trust. Therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair, and it is so revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.