Incheon District Court 2016Guhap51270 ( October 06, 2017)

Even though the name of the shares was simply changed due to the managerial necessity, it cannot be said that there was no purpose of tax avoidance.

Although it is argued that there was no tax avoidance purpose because the trustee simply changed due to the managerial necessity, it is difficult to fully prove that there was no tax avoidance at the time of the title trust or in the future.

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

Seoul High Court 2017Nu46266 Revocation of Disposition of Imposing Gift Tax

10 16 10

00 Head of tax office and 2

Incheon District Court Decision 2016Guhap51270 Decided April 6, 2017

September 20, 2017

September 27, 2017

1. The plaintiffs' appeals against the defendants are all dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The disposition of imposition of gift tax of KRW 3,50,00,000, KRW 5,792,220, KRW 20,000, KRW 20, KRW 260, KRW 14,60, KRW 898, KRW 930, KRW 12,66, and KRW 670, KRW 10, April 1, 2015 by the head of the tax office of 00, KRW 30,94, KRW 108,00, KRW 100, KRW 100, KRW 300, KRW 500, KRW 500, KRW 5,000, KRW 5,792, and KRW 220, KRW 20, KRW 20, KRW 209, KRW 12,66, and KRW 00, KRW 10,08,00, KRW 1039, KRW 238,3739,

1. Quotation, etc. of judgment in the first instance;

The reasoning of this court's judgment is as follows, except for the modification or addition of the corresponding part of the judgment of the court of first instance as follows 2, and as stated in the reasoning of the judgment of the court of first instance, it is consistent with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Revised parts

○ Up to 6 pages 3: from 7,00 up to 7,00 up to 7,00 up to

○ 7. Up to 7.0's 4.0's 7.0's 7.0's 7.0's

“1,230,213,303 won” in the last 7 pages shall be amended to “329,830,025 won”.

○ 9. Removal from 7.0 up to 8.0 up to 9.0 up to 8.0

○ 10 To revise “41,35,333 won” below to “17,613,721 won”

3. Supplement and addition of judgments;

A. Acquisition of the Plaintiff’s shares on October 8, 2013

With respect to the acquisition of the Plaintiff’s shares as of October 8, 2013, the Plaintiffs deemed that the objective of tax avoidance is a subjective element, and even if not less than 2/3 of the shareholders’ voting rights are legally necessary to dismiss the directors, Plaintiff 00 recognized that two of the three shareholders are necessary upon the consultation of a certified judicial scrivener who is a legal expert. Based on such subjective perception, if Plaintiff 00 transferred the shares of Plaintiff 20 to Plaintiff 00 for the dismissal of the directors, there was a clear subjective perception that Plaintiff 00 registered the title trust for the dismissal of the directors. Furthermore, at the time of the above title trust, the delinquent tax amount was 1,580,000,000

It argues that it was very weak as a source.

However, as recognized in the judgment of the first instance court, the burden of proving that there was no tax avoidance purpose may be proved by the method of proving that there was no other purpose than the tax avoidance purpose. However, as the nominal owner who bears the burden of proof, there was no clear purpose of tax avoidance with respect to the title trust, and the fact that there was no tax avoidance purpose in the future at the time of the title trust or in the future, it should be proved to the extent that it would not be doubtful if there were ordinary evidence that there was no tax avoidance (see, e.g., Supreme Court Decision 200Du1120, Sept. 22, 2006). In light of the fact that the Plaintiffs were 10 years old since the fact that there was no other purpose of tax avoidance, 20% of the voting rights of the shareholders present at the time of the second instance judgment, 30% of the total dividend income of the shareholders present at the time of the Plaintiff’s offering of 20% of the dividend income for the purpose of this case’s dismissal of the Plaintiff’s 1300%.

B. Acquisition of the Plaintiff’s shares

1) With respect to the acquisition of the Plaintiff’s shares as of August 7, 2000, the Plaintiffs asserted that, with the erroneous advice of the certified judicial scrivener, the title trust was inevitably made to the Plaintiff 100 with a view to recognizing the number of promoters necessary for the establishment of the corporation as seven persons and obtaining the number of promoters, the said title trust was irrelevant to Plaintiff 100, and that at the time, there was no tax evasion tax due to the title trust because there was no tax delinquency and dividend payment at the time of establishment of the instant corporation.

In light of the fact that, as recognized in the judgment of the first instance court cited by the court of this case, as recognized by the plaintiff Cho 00, since the incorporation of the corporation of this case, the promoters were one of the promoters, and the plaintiff Cho 00 did not have any objective of tax evasion in the above title trust, since the incorporation of the corporation of this case, the plaintiff Cho 10 was the plaintiff Cho 1,00 and the plaintiff Cho 1,00 stated that the plaintiff Cho 2,500 shares was the "title trust to the plaintiff 100 at the time of the investigation by the director of the tax office." In light of the fact that the plaintiff Cho 1,00 established the corporation of this case at the time of the investigation by the director of the tax office, the plaintiff Cho 1 stated that the corporation of this case was "title trust to the plaintiff 1, 200." Furthermore, according to the statement in the evidence No. 9, since the earned surplus of this case was deemed to have been continuously generated in the

2) 원고들은 원고 심00의 2002. 2. 27.자 주식 취득과 관련하여, 이 사건 법인의 주요 거래처인 @@건설에 연고를 가지고 있는 원고 심00의 이 사건 법인 영업에 관한 기여를 인정하여 원고 심00에게 특별보너스로 3,000주를 배정한 것이고, 명의신탁으로 인한 배당세 등의 경감 효과는 몇십만 원으로 매우 미미하므로 납세의무를 회피하기 위한 목적이 없었다는 취지로 주장한다.

However, as recognized in the judgment of the first instance court cited by this court, it is difficult to find that Plaintiff Cho 100 paid 3,000 shares to Plaintiff 1 200 by the evidence submitted by the Plaintiffs solely based on the evidence submitted by the Plaintiffs. As of February 27, 2002, when Plaintiff Cho 00 accepted all the shares held in the title trust with Plaintiff 1 64.16%, it constitutes the secondary taxpayer of the instant corporation at 64.16% if Plaintiff 10 acquired all the shares held in the title trust with Plaintiff 1 200 and 200 before Plaintiff 10, and when dividends were made due to earned surplus in the instant corporation, there is room to change income according to the ratio of shares, and as long as dividends, etc. can have been generated by the earned surplus in the instant corporation as above, it cannot be deemed that there was no tax avoidance at the time of the title trust or in the future. The Plaintiffs’

3) The Plaintiffs asserted that, with respect to the acquisition of Plaintiff 1’s shares on December 30, 2004, the Plaintiff did not have any tax arrears of the instant corporation at the time, and that there was no special circumstance to avoid taxes, except in the case of the occurrence of minor reduction of taxes incidental to the title trust, such as double application of the capital gains tax basic deduction following the stock transfer.

However, as recognized in the judgment of the first instance court cited by this court, if the Plaintiff Cho 00 at the time acquired all the shares held in the title trust with the Plaintiff 100 and the highest 00, it constitutes the secondary taxpayer of the instant corporation at 64.16% of its equity ratio. As of December 31, 2004, as of December 31, 2004, when the earned surplus of KRW 84,216,942 was generated, and dividends, etc. were made, there was a possibility of changing income depending on the equity ratio, and as long as the earned surplus in the instant corporation could have been generated, it is difficult to deem that there was a minor reduction of tax, as long as it is difficult to deem that there was only a reduction of tax, at the time of the title trust or in the future. The Plaintiffs’ assertion is

C. Acquisition of the Plaintiff’s maximum 00 shares

1) The Plaintiffs asserted to the effect as follows with respect to the acquisition of the Plaintiff’s shares on March 21, 2001. During the process of establishing the instant legal entity, the Plaintiffs asserted to the effect that, with the erroneous advice of a certified judicial scrivener, the number of promoters necessary for establishing the legal entity was equal to seven persons, and the Plaintiff Cho 00 was merely the title trust of the shares to the Plaintiff Choi 00, a pre-existing shareholders who left for maintaining the said seven persons after acquiring the instant legal entity, and did not aim at tax avoidance.

Even if the plaintiff 100 falls under the second taxpayer, the effect of reducing the dividend tax at the time is very limited to a few hundred thousand won, so it cannot be recognized as the purpose of tax avoidance.

However, as recognized in the judgment of the first instance court cited by this court, according to the former Commercial Act (amended by Act No. 6488, Jul. 24, 2001) enforced from October 1, 1996, which entered into force since this court (amended by Act No. 6488, Jul. 24, 2001), it is difficult to view that the establishment of a corporation only three promoters, and therefore, the title trust with respect to the plaintiff maximum 00 was essential. At the time, when the plaintiff 100 acquires all the shares held in the title trust with respect to the plaintiff 100 and maximum 00, it was 57% of the shares in the case where the earned surplus was generated in the corporation of this case and dividends, etc. were made, income may vary depending on the shares ratio, and as long as dividends, etc. could have been made due to the earned surplus in the corporation as above, it cannot be deemed that it was merely a minor tax reduction. Therefore, the plaintiffs' assertion was not reasonable at the time of this.

2) The plaintiffs' assertion on the acquisition of the shares held on December 30, 2004 and their determination are as stated in Paragraph (b) 3 of the above Article.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants shall be dismissed in its entirety due to the lack of reasonable grounds. The judgment of the first instance court with the same conclusion is just, and the plaintiffs' appeals against the defendants are dismissed in its entirety as there is no ground for appeal.