Cho Jae-2018- Busan District Court-4887 ( March 25, 2019)

In the case of a right donation, it is reasonable to view that the date of receipt of stocks is indicated in the detailed statement of the change of stocks, etc. and the statement of transfer of stocks and shares

There was no agreement on donation, but there is no evidence to acknowledge the forgery of a transfer contract, etc., and in the case of a bypass donation, it is reasonable to regard the date stated in the detailed statement on the situation of changes in stocks, etc. and the detailed statement on the transfer of stocks and shares

Article 2 of the Inheritance Tax and Gift Tax Act; the scope of donated property under Article 31 of the Inheritance Tax and Gift Tax Act; the time of acquisition of donated property under Article 23 of the Inheritance Tax

2019Guhap614 Revocation of Disposition of Imposition of Gift Tax

The United States of America

○○ Head of tax office

September 6, 2019

October 18, 2019

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s imposition of gift tax of KRW 165,465,260 on September 26, 2014 against Plaintiff LA on August 1, 2018, and the imposition of KRW 246,156,280 on the gift tax of KRW 165,465,260 on September 26, 2014, respectively, is revoked.

1. Details of the disposition;

A. Status of the parties

1) On May 30, 2008, Company AAD established vessel supplies wholesale business, painting construction business, and other specialized construction business for its business purposes, and its trade name was changed to AAADD from November 11, 2008 to November 11, 201, respectively, as its representative director; from November 11, 201 to August 23, 201, as its representative director; from August 23, 2011 to August 23, 2013, as its representative director, from August 23, 2014 to September 9, 2016; and from June 14, 2018 to June 14, 2018, as its representative director.

2) The plaintiffs are children of DoD. The plaintiffs are children of ○○○○○○ ○. ○○○, the plaintiffs’ grandchildren, and the plaintiff’s grandchildren are ○○ ○○ ○○ ○○ ○. ○○, the plaintiff’s grandchildren, and the plaintiff’s grandchildren are ○ ○ ○ ○○ ○ ○ ○ ○. ○ ○ ○.

B. The grounds for holding the shares of the Plaintiffs AAA Costa

1) Around November 2008, AAD acquired 5,00 shares (hereinafter referred to as “stocks”) 100% of the shares of 5,000 shares (hereinafter referred to as “stocks”) and held title trust with LA and LAA, respectively. Around 2009, LAD again held title trust with 200 shares held in title trust with LA and 650 shares held in title trust with LA, respectively.

2) AA Star paid 25,000 equity capital increase, around 2010, to which the total number of outstanding shares was 30,000 shares, and the total number of outstanding shares was 30,000 shares. The Do Governor re-titled the title trust of 5,100 shares held in title trust with the Do Governor.

3) On September 26, 2014, Company A transferred 5,100 shares in title trust to the Plaintiff Company, and Company A transferred 1,700 shares out of 5,100 shares in title trust to the Plaintiff Company A, and Company A transferred 3,400 shares out of 5,100 shares in title trust to the Plaintiff Company A, respectively. Company A transferred 1,700 shares out of 5,100 shares in title trust to the Plaintiff Company A, 3,400 shares to the Plaintiff Company A, and around the end of 2014, Plaintiff A Company A was finally transferred 8,500 shares in title trust (5,100 shares + 1,700 shares + 1,700 shares) to the Plaintiff Company B, and Company B acquired 3,400 shares in total to the Plaintiffs (hereinafter collectively referred to as “A, 50 shares in total to the Plaintiffs”).

4) Meanwhile, on October 1, 2014, AA Star issued 3,730 shares with a total of 8,206 shares issued on December 4, 2014, with a total of 30,00 shares to increase the number of shares issued from 30,000 shares to 38,206 shares with a total of 38,206 shares issued on December 4, 2014, and such changes in the annual shares are as follows.

C. From March 20, 2018 to April 27, 2018, the ○○ regional tax office conducted an investigation into the change of shares made to AA Cost and the Plaintiffs (hereinafter “instant investigation”). The instant shares were deemed to have been bypassed to the Plaintiffs, who are their children, after having title trust with Does, ParkA, and SongA, by deeming that Does, the actual owner of the instant shares, were to have been donated to Does, ParkA, and SongA, and thus, notified the Defendant of a resolution on gift tax determination (hereinafter “instant resolution”).

D. Disposition, etc. of this case

Accordingly, on August 1, 2018, the Defendant determined the payment deadline as indicated below on August 31, 2018, and determined and notified each of the following: (a) KRW 165,465,260 of the gift tax on September 2014; and (b) KRW 40,345,510 of the gift tax on September 2014 on Plaintiff DamageB and DamageCC (hereinafter “instant disposition”).

(e) Filing an administrative appeal;

The Plaintiffs appealed and filed an administrative appeal with the Tax Tribunal on November 2, 2018, but the Tax Tribunal dismissed the Plaintiffs’ claim on March 25, 2019.

Facts that there is no dispute over recognition basis, Gap evidence 1 through Gap evidence 7, Eul evidence 1 (including a number number for additional evidence; hereinafter the same shall apply), the purport of the whole pleadings, and significant facts

2. Judgment on the plaintiffs' assertion

A. The plaintiffs' assertion

1) The non-existence of donation of the shares of this case

A) Whether there was a gift tax subject to gift tax under tax law should determine whether the transferee acquired shares and the transferee acquired them and actually acquired the status to exercise the rights as a shareholder. Dood and the Plaintiffs did not agree with the intent to donate the shares of this case, or demanded consultation or consent on the use of name. Since Dood and the Plaintiffs continued to exercise the substantial rights as a shareholder of the shares of this case, Dood did not have donated the shares of this case to the Plaintiffs.

B) Nevertheless, since DoD transferred the instant shares under the name of the Plaintiffs by means of forging the share transfer contract between AA, ParkA, and Song-A and the Plaintiffs by taking advantage of the Plaintiffs’ names, DoD cannot be deemed to have donated the instant shares to the Plaintiffs or have held title trust.

C) Before determining gift tax, the Defendant imposed gift tax without specific evidence, without any notification, face-to-face investigation, financial investigation, and on-site verification on the Plaintiffs. Even if gift tax is imposed pursuant to the legal fiction of donation of title trust property under Article 45-2(1) of the Inheritance Tax and Gift Tax Act, the Defendant’s taxation on the transfer of stocks in this case by deeming the transfer of stocks in this case as a gift under the Civil Act is in violation of the principle of no taxation without law.

D) Even if DoD held the instant shares in title trust with the Plaintiffs, it cannot be deemed as subject to gift tax due to the lack of the purpose of tax avoidance.

2) Time of donation of the instant shares

A) Even if grandchildren donated the shares of this case to the plaintiffs, the donation date should be deemed not to be the date on which the trustee transferred the shares of this case to the plaintiffs, but the date on which the shares of this case were transferred in the name of the above trustee, rather than the date on which the shares of this case were transferred to the plaintiffs.

B) Although the Defendant should consider the date of submission of the detailed statement on the change of stocks, etc. as the date of deemed donation and levy gift tax, the Defendant erred by deeming that September 26, 2014, the date of transfer of stocks and investment shares, etc., was the donation date of the instant shares and imposing gift tax.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) Determination as to whether the instant shares were donated

A) Relevant legal principles, etc.

(1) Article 2(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) provides that “The term of donation under this Act includes any tangible or intangible property, regardless of its title, form, purpose, etc., in a direct or indirect manner, in which the economic value can be calculated (including where such property is transferred at a remarkably low price), or in which the property value of another person is increased by its contribution.” Article 31(1) of the former Inheritance Tax and Gift Tax Act provides that “The donated property includes any property belonging to the donee and having economic value that can be converted into money, all de facto or de facto rights having property value (title 1) and all economic benefits (title 2) that can be converted into money.”

(2) In addition, Article 14(3) of the Framework Act on National Taxes provides that "in cases where it is recognized that the benefit of this Act or other tax-related Acts is obtained unfairly by means of indirect methods via a third party or by means of two or more acts or transactions, it shall be deemed that the party directly engaged in the transaction or that the party has engaged in a single act or transaction consecutively, and thus, this Act or other tax-related Acts shall apply."

(3) The fact of ownership of shares is to be proved by the tax authority’s data, such as the list of shareholders, the statement of stock transfer or the register of corporate register, etc. However, even in cases where a single shareholder appears to be a single shareholder in light of the above data, where there are circumstances, such as where the actual shareholder was stolen or registered in the name other than the real shareholder’s name, the nominal owner who asserts that he/she is not a shareholder should prove that he/she is not a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 20

(4) If an administrative agency received a written confirmation from the other party to an investigation regarding a specific violation in the course of an investigation, barring special circumstances, such as that it is difficult to take the written confirmation as evidentiary materials of the specific fact because the written confirmation was drafted compulsorily against the will of the originator or its content is insufficient (see, e.g., Supreme Court Decision 2001Du2560, Dec. 6, 2002).

(5) Generally, the burden of proving the facts requiring taxation in a tax proceeding is to be deemed to have the imposing authority. However, if the facts alleged in light of the empirical rule in a specific lawsuit are revealed, it cannot be readily concluded that the other party is an unlawful disposition that failed to meet the requirements for taxation, unless the other party proves that the facts in question are not eligible to the application of the empirical rule (see Supreme Court Decision 2002Du6392, Nov. 13, 2002).

B) Specific determination

(1) 앞서 본 사실, 갑 제1호증, 갑 제2호증, 을 제2호증 내지 을 제6호증 의 각 기재에 변론 전체의 취지를 종합하여 인정되는 다음의 사정들, 즉 ① 앞에서 본 바와 같이 원고들은 이 사건 주식의 실질 소유자였던 손DD의 자녀들로서 이 사건 주식의 증여 당시인 2014년 무렵 부모와 함께 정상적인 가정생활을 영위하였던 것으로 보이고, 당시 원고 손AA은 12세의 미성년자로서 친권자인 손DD이 법정대리인이었으며, 원고 손BB은 22세, 원고 손CC은 21세의 대학생들로서 아직 부모로부터 독립하여 생활을 영위하고 있던 상황은 아니었던 것으로 보이는 점, ② 손DD은 이 사건조사 과정에서 원고들에게 양도한 이 사건 주식에 관하여, 문AA과 정AA 등에게 주식을 명의신탁한 것은 AAA스타의 과점주주가 되지 않기 위한 것과 추후 자녀인 원고들에게 주식을 증여할 때 증여세를 줄이기 위한 것이었고, 명의수탁자인 정AA, 박AA, 송AA이 이 사건 주식을 원고들에게 양도한 것은 자신의 요구로 원고들에게 발생하는 증여세를 회피하기 위하여 양도를 가장한 것임을 인정하였으며, 또한 이 사건 조사과정에서 명의수탁자인 박AA과 정AA도 동일하게 이를 인정하였던 점, ③ 이사건 조사과정에서 손DD과 명의수탁자 박AA, 정AA는 위와 같은 내용이 기재된 진술서 및 확인서에 자필로 서명하고 그 말미에 신분증을 첨부하기도 하였고, 달리 위 진술서 및 확인서가 작성자의 의사에 반하여 강제로 작성되었거나 그 내용의 미비 등 때문에 구체적인 사실에 대한 증명자료로 삼기 어렵다는 등의 특별한 사정을 인정할 아무런 자료가 없으므로, 위 진술서 및 확인서의 증거가치를 함부로 배척할 수 없는 점, ④ 원고들은 부친인 손DD과 사이에서 증여에 대한 합의가 없었음에도 불구하고 원고들 명의의 이 사건 주식에 대한 양도계약서 등을 위조하였다고 주장하나 이를 인정할 만한 증거도 없고, 앞에서 본 원고들과 손DD 사이의 가족관계, 원고들의 나이, 신분, 생활관계 등에 비추어 부친인 손DD이 자녀인 원고들에게 무상으로 이 사건 주식을 증여함에 있어서 원고들과 사이에 협의나 동의 없이 원고들 의사에 반하여 양도 계약서를 위조하여 명의개서를 하였다는 원고들의 주장을 선뜻 수긍하기도 어려운 점(더욱이 당시 미성년자인 원고 손AA의 경우에는 친권자인 손DD이 법정대리인이었고, 비록 손DD이 양도계약서 등을 작성하였다고 하더라도 이를 곧바로 위조한 것이라고 볼 수도 없다), ④ 원고들은 2014년 당시 손DD의 채무가 15억 원 상당에 이르러 소극재산이 적극재산을 초과하고 있는 상태에서 손DD이 AAA스타를 양도하고자 하였고, 채무초과 상태에서 이 사건 주식을 양도할 경우에는 채권자들로부터 매도대금을 추심당할 것을 우려하여 매도에 앞서서 자녀들인 원고들 명의로 신탁을 한 것이라고 주장하나, 당시 이 사건 주식은 이미 손DD 명의가 아니라 명의수탁자들 명의로 되어 있어서 그 매도대금이 손DD의 채권자들로부터 추심당할 우려가 없었던 것으로 보이는바, 손DD이 채권자들에 의한 강제집행을 피하기 위해서 원고들에게 이 사건 주식을 명의신탁한 것이라는 원고들 주장은 믿기 어려울 뿐만 아니라 달리 손DD이 원고들 명의를 도용하면서까지 원고들 명의로 이 사건 주식을 이전할 만한 사정을 찾아보기도 어려운 점(오히려 가족들인 원고들에게 명의를 이전하여 매도하는 경우에는 채권자들로부터 사해행위 등으로 문제될 여지가 있다), ⑤ 오히려 원고들은 2016. 8. 22. 이 사건 주식을 주식회사 AAA홀딩스에 양도하고, 2017. 3. 8. ○○지방법원 △△지원 2017차전**24호 사건에서 주식회사 AAA홀딩스에 대하여 주식 매매대금 800,000,000원 중 550,000,000원의 지급을 명하는 구하는 지급명령 결정을 받았으며, 2017. 4. 10. ○○지방법원 △△지원 2017타채***492호 사건에서 위 채권을 청구채권으로 하여 주식회사 AAA홀딩스 소유의 주식에 대하여 가압류를 본압류로 이전하는 주식압류명령 결정을 받았던 것으로 보이는 점(원고들은 이와 같은 소송 진행도 부친 손DD이 원고들 모르게 진행한 것이라고 주장하나, 이를 인정할 만한 자료가 없고, 가사 손DD이 원고들을 대신하여 하였다고 하더라도 이는 적어도 원고들의 묵시적 동의나 승낙을 받아서 이루어진 것이라고 봄이 타당하다), ⑥ 원고들은 민법상 증여로 보아 과세하면서 주식변동상황명세서와 주식・출자지분 양도명세서를 증여세의 과세근거로 삼을 수 없다고 주장하나, 구 상속세및증여세법 제45조의2 제3항은 명의신탁재산의 증여 의제규정을 적용할 때 주주명부 또는 사원명부가 작성되지 아니한 경우 주식등변동상황명세서 등에 의하여 명의개서 여부를 판정한다는 것이지 주식등변동상황명세서를 명의신탁재산의 증여의제 규정에 한정하여 적용한다는 의미가 아니고, 달리 증여 여부를 판단하는 자료로 주식등변동상황명세서를 사용하는 것을 금지하는 규정도 없으므로 원고의 위 주장도 받아들이기 어려운 점 등을 종합하면, 손DD은 2014년경 이 사건 주식을 원고들에게 증여한 것으로 봄이 타당하다.

(2) Therefore, the plaintiffs' assertion that there was no fact that the plaintiffs received the instant shares from DoD. is without merit.

2) Determination on the donation date of the instant shares

A) Relevant provisions

Article 23(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 26069, Feb. 3, 2015; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act") provides that where a donated property is a stock or a contribution quota (hereafter referred to as “stocks, etc.” in this paragraph), the donee shall be deemed to have acquired the relevant stocks, etc. on the date objectively confirmed by payment of dividends or exercise of shareholder’s rights: Provided, That where the date of receipt of the relevant stocks, etc. is unclear or the name, etc. of the acquisitor under Article 337 or 557 of the Commercial Act is entered on the register of stockholders or the register of members before the relevant stocks, etc. are delivered, the date of transfer or entry

B) Specific determination

(1) Based on the foregoing provision, the following circumstances are established based on the aforementioned facts, Gap evidence No. 1, Eul evidence No. 2, Eul evidence No. 2, and Eul evidence No. 6, i.e., the details of changes in stocks, etc. and the statement of transfer of shares and equity shares to Gap, a title trustee, are stated as transferring the shares of this case to the plaintiffs on September 26, 2014. Does are also subject to the investigation of this case, and Does are deemed as having recognized that transfer of shares was a bypass donation to the plaintiffs, and it was reasonable to deem that the date of donation was recognized as the date of September 26, 2014, ② the transfer income tax statement submitted by the title trustee Park, Song, and Song evidence No. 2, the transfer date of shares, and the transfer of shares to the title trustee on September 26, 2014, and the fact that the plaintiffs were objectively indicated as the transfer date of shares under the name of the plaintiffs, the transfer date of shares to the title trustee.

(2) Although the date of submission of the statement on the change of stocks, etc. should be deemed as the date of deemed donation and gift tax should be imposed on the Plaintiffs, the Plaintiffs asserted that the Defendant: (a) on September 26, 2014, which was the date of transfer of stocks, etc. and the date of transfer of stocks and investment shares, the date of donation; (b) however, on September 26, 2014, Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddds.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit. It is so decided as per Disposition.