National High Court Decision 2007J 2402 (02.04)

If the title truster is found to be wrong, the gift tax assessment against the title trustee is illegal.

When the tax authority imposes gift tax on the ground that the title truster is a title trust, a taxation requirement is established to specify who is the title truster.

1. The Defendant imposed a gift tax of KRW 835,586,120 on Plaintiff KimA on February 12, 2007, and the disposition imposing the gift tax of KRW 835,586,120 on Plaintiff KimA, and the disposition imposing the gift tax of KRW 835,586,120 on Plaintiff KimA shall be revoked.

2. The defendant bears the costs of lawsuit.

The same as the disposition (the date of notification of entry No. 1-1 of A, and the date of notification of entry No. 1 of B shall be specified as the date of disposition).

1. Circumstances and circumstances subsequent to the disposition; and

A. The plaintiff KimA, the non-party 5, the KimB, KimCC, KimD, SDD, Switzerland, UF, UG, lowestH, and KK (hereinafter referred to as "GG et al.") acquired the total of 4,389,616 shares of NN (hereinafter referred to as "N") owned by MMMMNtech from April 18, 2005 to September 26 of the same year, as indicated in the following table, in its name, 4,389,616 shares of NN (hereinafter referred to as "N"), and the acquisition value is the total of 5,864,528,142 won (including elicitation).

B. From April 18, 2005 to October 28, 2005, 2005, 4,214 shares out of NN shares 4,389,616 shares (hereinafter referred to as "the shares of this case") acquired under the name of Gangwon and eight other (including Plaintiff KimA), were sold inside and outside the securities trading office and the total amount of the purchase price is KRW 20,92,07,630.

C. On April 18, 2005, under the name of the Plaintiff KimA, etc. (the date of actual acquisition of stocks, and on April 1, 2005, the date of purchase) 455,000 shares (hereinafter “instant shares”). As of August 1, 2005, the NN shares in the name of the Plaintiff KimA are 260,00 shares.

D. Under the premise that the instant shares are owned by the Defendant, and that the Plaintiff KimA held a title trust with the Plaintiff KimA on April 18, 2005, the Defendant deemed the gift pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “Act”), and imposed KRW 835,586,120 on the instant shares on February 12, 2007 (the date of notice indicated in subparagraph 1 shall be specified as the date of disposition), and on March 19, 2007 (specific as the date of notice indicated in subparagraph 1 of the Evidence No. 1) the disposition imposing the said gift tax on the Plaintiff KimA on the ground that it is a donor of the said shares (hereinafter referred to as the “instant disposition”).

마. 그런데 서울지방국세청장은 이 사건 주식의 실제 소유자가 원고 이PP의 형인 이QQ이라는 전제 하에, 이QQ이 쟁점 주식을 포함한 NN 주식을 차명으로 취득한 뒤 그 양도차익에 대한 양도소득세를 포탈하였다는 이유로 이QQ을 수사기관에 고발하였다.

바. 검찰은 이QQ을 특정범죄가중처벌 등에 관한 법률위반(조세) 등의 혐의로 기소하였고, 이에 대한 형사 항소심 판결(서울고등법원 2008. 6. 4. 선고 2008노145 판결)에서 이QQ에 대한 유죄판결이 선고되면서, 이 사건 주식 모두의 실질소유자가 이QQ으로 인정되었는데, 위 판결에 대하여 검사 및 이QQ이 각 상고하였으나, 각 상고이유서에 서 이 사건 주식이 실질적으로 이QQ 소유임은 다투지 않고 있다.

G. On May 1, 2007, the appeal filed by the Plaintiffs on May 1, 2007 was dismissed on February 4, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, 9, 10, Eul evidence 1-8, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' proposal

1) The actual owner of the pertinent shares is the Plaintiff KimA. The Plaintiff KimA acquired the key shares after remitting his funds directly or through Kim R to the Plaintiff TPP, and thus, it cannot be deemed that the Plaintiff Lee PP was a property trusted in trust to the Plaintiff KimA.

2) 설령 원고 김AA이 쟁점 주식의 실질적 소유자로 인정되지 않는다고 하더라도, 그 실질적 소유자는 원고 이PP이 아닌 이QQ이므로 이 사건 처분은 처분의 원인된 사실을 잘못 인정한 것으로서 위법하다.

또한, 쟁점 주식이 이QQ으로부터 원고 김AA에게 명의신탁된 재산이라고 보더라도, 이와 같은 명의신탁에 조세회피의 목적이 없으므로 법 제45조의2 제l항 제1호에 따라 증여로 의제될 수도 없다.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the actual owner of the shares at issue is the Plaintiff-P or not

All of the instant dispositions were made on the premise that the Plaintiff, as the actual owner of the shares at issue, entrusted the ownership of the shares to the Plaintiff KimA.

그러므로, 우선, 원고 이PP이 쟁점 주식의 실질소유자로서 그 소유 명의를 원고 김AA에게 신탁하였다고 볼 수 있는지에 관하여 보건대, 을 제3 내지 8호증의 각 기재만으로는 이를 인정하기 부족하고, 달리 이를 인정할 증거가 없다. 오히려 갑 제9, 10호증의 각 기재에 변론 전체의 취지를 종합하면, 쟁점 주식의 실질 소유자는 원고 이PP의 형인 이QQ이고, 이QQ이 쟁점 주식을 포함하여 이 사건 주식을 원고 김AA을 포함하여 강BB 외 8인에게 명의신탁한 사실이 인정될 뿐이다.

Therefore, the instant disposition based on the premise that the Plaintiff TPP entrusted the ownership of the shares in question to the Plaintiff KimA is unlawful by recognizing the fact that it was the cause of the disposition.

2) In a case where a title truster was mistakenly recognized, the fact that whether the imposition of gift tax against the title trustee is lawful or that the transfer of outstanding shares was based on the title trust is a taxation requirement for the instant disposition, and thus, the tax authority should prove

In light of the overall purport of the arguments in the statement Nos. 9 and 10 of the evidence, it is a question whether the plaintiff KimA knows the fact that the plaintiff KimA is not the actual owner of the shares at issue but the trustee, and in such a case, it is illegal to impose the gift tax on the plaintiff KimA.

In this case’s disposition on the ground that the title trust is a title trust, Plaintiff KimA may be exempted from the burden of gift tax by proving that the said title trust was not the purpose of tax avoidance. However, in proving this point, Plaintiff KimA’s assertion that is the truster would bring about an important difference in the facts alleged, method of proof, etc. As such, the tax authority should specify who is the title truster when imposing gift tax on the ground that the title trust is a title trust. If such determination is not made, the title trustee must prove that the title truster was either specified by himself/herself as a truster or on the premise that there were several persons under a virtual trust. This is inconsistent with the fact that the burden of proving the fact of title trust as a tax requirement exists in the tax authority.

The instant disposition was made on the ground that the title truster of the shares at issue is the Plaintiff-P, and there is no evidence to acknowledge that the title truster of the shares at issue is the Plaintiff-P. Therefore, the instant disposition was unlawful as it was made without any taxation requirement.

3) Sub-determination

In the end, the disposition of this case is illegal by recognizing the fact that is the cause of the disposition.

3. Conclusion

Since the plaintiffs' claims are well-grounded, they are valid.