Seocho 2014west 5129 ( December 18, 2014)

The taxation on constructive gift of title trust due to the nominal trust by fraudulent use is illegal.

The transfer of this case was made through a share transfer agreement without the consent or permission of the plaintiffs, and the transfer of this case was merely stolen from the plaintiffs' names, and it cannot be deemed that there was a title trust agreement between the title truster and the title trustee.

Donation of trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2015Guhap64374 Revocation of Disposition of Imposition of Gift Tax

Kim AA et al.

The head of Dongjak Tax Office and one other

November 13, 2015

December 11, 2015

1. The imposition of each gift tax (including additional taxes) stated in the “Attachment 1’s Schedule” column for each of the plaintiffs listed in the same list as of the date of each disposition listed in the same list shall be revoked. 2. The costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. The 00 comprehensive architect office (formerly: 00 comprehensive development, 00 city development, hereinafter referred to as the “instant company”) has been established on April 30, 2001 and carries out construction business management and related research services, housing construction business, sale in lots, and real estate lease business.

B. From the time of the establishment of the instant company to March 30, 2012, Kimz owned the entire shares and substantially controlled the instant company. Since the establishment of the instant company, the said shares were transferred in the name of the friendly group (e.g., gy, Kimx, KimW) of Kimz, including the Plaintiffs, who are the children of Kimzz, and the executives and employees (limited to those of the previous company: 00 comprehensive architectural firms: hereinafter referred to as “0 construction”) of the instant company and the comprehensive architectural office (including previous company: 00 comprehensive architectural firms: hereinafter referred to as “0 construction”), who are affiliated companies of the instant company and the instant company. Specific name changes in the name of the instant company are as shown in the list of changes in the name of the instant company.

D. The Defendants: [Attachment 20. 0. 20. ; 20. ; 30. 20. ; 20. ; 30. ; 40. ; 20. ; 30. ; 40. ; 20. ; 20. ; 3. 0. ; 4. ; 0. ; 20. 1; 3. 4. ; 0. ; 20. ; 20. ; 3. 4. ; 3. 1. ; 4. ; 3. 1. ; 4. ; 4. ; 20. ; 1. 1. 206 ; 3. 4. ; 3. 1. ; 200, 2006 ; 3. 4. ; 201 ; 3. 1. ; 2006 ; 3. ; 4. 20. . . . . . . . 20. . . . . . .20. . . . . . . . . . .20. . . .20. . . . . . . . .

2. Related statutes;

Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003); Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007); and Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter collectively referred to as the “instant provision”). 3. Whether the instant disposition is legitimate or not;

A. As to whether the plaintiffs' names were stolen

1) Facts of recognition

A) including the time of the transfer of ownership following the transfer of shares on December 31, 2003 and December 22, 2006, which became the object of the instant disposition, Plaintiff Kima served as an auditor of the instant company from August 8, 2003 to July 1, 2009. Plaintiff Kimb was employed as a director of the instant company from January 10, 203 to March 10, 2004; and Plaintiff Kimb was employed as a director of the instant company from September 12, 2006 to July 1, 2009; and Plaintiff Kima was employed as a director of the instant company from May 2006 to around July 4, 2006 to July 1, 200, Plaintiff Kimb from July 200 to July 1, 2009.

C) From November 1, 2008 to April 1, 2010, Kimz was convicted of imprisonment with prison labor for one year and two years of suspended execution (hereinafter referred to as "related criminal judgment on January 17, 2014; hereinafter referred to as "related criminal case"), and the above judgment became final and conclusive as it is, under the name of the plaintiff Kima, Kimp, handw, Kimy and Hong (hereinafter referred to as "victim") without authority, for a crime of forging by preparing 12 copies of a share transfer and takeover contract on the shares of the company of this case and 00 construction (hereinafter referred to as "victim"). The above judgment became final and conclusive as it is without dispute over the facts that there is no dispute over the judgment, Gap, 4, 10, 21, 26, Eul evidence No. 1, and the purport of the entire pleadings, as a whole, the purport of the whole pleadings.

3) Determination

A) The instant provision is applicable in cases where the actual owner and the nominal owner enter into an agreement or communication with respect to property requiring registration, etc. for the transfer or exercise of rights, and such registration, etc. is unilaterally made in the name of the nominal owner regardless of the intent of the nominal owner (see Supreme Court Decision 2007Du15780, Feb. 14, 2008).

B) In light of the following facts and circumstances, each of the evidence as seen earlier, Gap evidence Nos. 12 through 18, 22 through 25, Eul evidence Nos. 2 through 12, and Eul evidence Nos. 2 through 12, the purpose of the entire pleadings is added to the following facts and circumstances, the transfer of this case was made by allowing lenn or Hongo, an officer or employee of 00 construction, to prepare a share transfer contract under the plaintiffs' name without the plaintiffs' consent or permission, and based on this, the transfer of this case was made by using the name of the plaintiffs in the transfer of this case, and it cannot be deemed that there was a title trust agreement between the plaintiffs

① The Plaintiffs are the children of Kimz, and they are in line with the corporate register of the instant company at the time of the transfer of the title, Plaintiff Kima, and Plaintiff Kimb, respectively, and were listed as directors. However, there is no evidence to deem that the Plaintiffs actually worked for the instant company in the course of performing their duties as the above officers. Rather, Plaintiff Kimb, from December 2005, and Plaintiff Kimba, from May 2006, and from May 2006 to 00, it can be recognized that they were employed for each of the above construction. In light of this, it is consistent with the empirical rule to deem that the Plaintiff had not actually worked for the instant company even at the time of the registration of the officers.

② Around the time of the instant change of entry, each of the pertinent shares transfer contracts was written. Each of the above contracts entered the same blanks as the acceptance of the same body regardless of the names of the parties (However, the drawing up by nn and the drawing up by scaro is different from the body of body), and the Plaintiffs’ seal imprints as so-called “stamps.” In light of these facts, there is no evidence suggesting that the Plaintiffs did not directly prepare the above contract, and that Kimz did not obtain prior consent of the Plaintiffs, or that it was known to the Plaintiffs. ③ From November 1, 2008 in the relevant criminal judgment, Kimz was found guilty of having prepared a share transfer contract by stealing the names of the victims including the Plaintiff Kimz from November 1, 2008. During the process of the instant criminal procedure, Kimz and Kimq were prepared by stealing by stealing using the names of victims, and there was no reason to view that the transfer of ownership was conducted in the same way as that of the instant case, and there was no other reason to regard the transfer of ownership as the instant case.

④ Plaintiff Kim Jong-a, who entered around April 26, 2012 and around 00, prepared a written confirmation that Kimz had known that the Plaintiff transferred its shares in its future. It is true that the Plaintiffs did not return the name of the instant shares before the tax investigation or take measures, such as filing a criminal complaint against Kimz. However, even if the Plaintiff knew of this fact after the transfer of the title, in light of the fact that the Plaintiff was the son of Kimz’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’

C) Therefore, the instant disposition based on the premise that the instant transfer was made pursuant to the title trust agreement is unlawful (the existence of the purpose of tax avoidance, etc. is not examined as to the remainder of the disposition).

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are justified, and all of them are accepted, and it is so decided as per Disposition.