early 201B0352 ( October 15, 2011)

It is not proved that the title trust was made for any other purpose than the tax avoidance

It is reasonable to deem that a transfer of shares was made in light of the fact of submitting a statement on the change of stocks, etc. with which shares are acquired, and there is no proof that a title trust was made for purposes other than tax avoidance

2011Guhap3234 Revocation of Disposition of Imposition of Gift Tax

XX

Head of tax office

August 16, 2012

September 20, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposing gift tax of KRW 000 against the Plaintiff on August 19, 2010 is revoked.

1. Details of the disposition;

A. On March 2010, the director of the Seoul Regional Tax Office conducted an investigation of stock fluctuation with respect to the company XX (hereinafter referred to as “ XX”), and found that 20 million shares issued by the said company (hereinafter referred to as “instant shares”) were transferred to the Plaintiff and requested submission of transaction data related to payment, the Plaintiff explained that the purchaser of the instant shares was in title trust by KimB.

B. Accordingly, the Defendant applied Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “former Inheritance Tax and Gift Tax Act”) to the Plaintiff on August 19, 2010, deeming that the Plaintiff was donated the instant shares from KimB and imposed KRW 000 on the Plaintiff (hereinafter “instant disposition”).

C. On November 16, 2010, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal dismissed the Plaintiff’s claim on June 15, 201.

[Ground of recognition] Facts without dispute Gap evidence Nos. 5, Eul evidence Nos. 1 through 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Although the Plaintiff publicly announced that it was the Plaintiff’s acquisition of the instant shares, the Plaintiff did not transfer the instant shares. Therefore, the instant disposition based on the premise that KimB held the title trust to the Plaintiff is unlawful.

2) Even if the instant shares were held in title trust, the original ParkCC borrowed money from KimB and intended to purchase the instant shares from ParkB, and KimB held that the instant shares were held in title trust with the purpose of collateral to recover the said loan. Therefore, since KimB did not have the purpose of tax avoidance in the title trust of the instant shares to the Plaintiff, the instant disposition was unlawful on a different premise.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On August 12, 2008, ParkCC concluded a contract to acquire management rights of the said company by purchasing the instant shares in 000 won from the price with Ma representative Director-A.

2) On the other hand, KimB lent the purchase price of the instant shares to ParkCC, which became difficult to recover, and on August 19, 2008, concluded a contract with the Plaintiff on August 19, 2008, which entered into between the Plaintiff and the Plaintiff to title trust the instant shares, but the tax and public charges incurred to the Plaintiff were responsible by KimB.

3) Afterwards, on December 19, 2008, the Plaintiff reported and announced to the Financial Supervisory Service the fact that the largest shareholder was changed to the Plaintiff by accepting the instant shares from the ASEAN.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 17, Eul evidence Nos. 2 and 3, the purport of the whole pleadings

D. Determination

1) Whether the change of holders of the instant shares is made

Article 45-2 (3) of the former Inheritance Tax and Gift Tax Act provides that where a register of shareholders or a register of members has not been prepared, the transfer of a register shall be determined by the documents concerning shareholders, etc. submitted to the chief of the district tax office having jurisdiction over the place of tax payment pursuant to Articles 109 (1) and 119 of the

In full view of the purport of the argument in the statement Nos. 9 and 11 as to the instant case, it can be acknowledged that the Plaintiff prepared a certificate of stock acquisition with the purport that the Plaintiff received stocks of this case on September 1, 2008 according to a contract for management right and stock acquisition, and that the Plaintiff submitted a statement of stock change with the purport that the Plaintiff would acquire the stocks of this case from Jeong in 2008 upon filing a corporate tax return with the head of Sungdong Tax Office in 2008. Thus, it is reasonable to view that the Plaintiff transferred the transfer of the stocks of this case, barring any special circumstance according to the above facts of recognition. Accordingly, the above assertion by the Plaintiff on a different premise is without merit.

2) Whether the purpose of tax avoidance is tax avoidance

The legislative purport of the provision on constructive gift of title trust property lies in recognizing an exception to the substance over form principle to the purport that the act of tax avoidance is effectively prevented, thereby realizing tax justice (see, e.g., Supreme Court Decision 2005Du14714, Jun. 9, 2006). Therefore, with respect to the absence of the purpose of tax avoidance, it may be proven by means of proving that there was another purpose other than the purpose of tax avoidance (see, e.g., Supreme Court Decisions 2004Du7733, May 12, 2006; 2004Du13936, May 25, 2006). However, with respect to the title trustee who bears the burden of proof, there was a clear purpose without relation to the tax avoidance to the extent that there was no purpose of tax avoidance in the title trust, and if there was no objective or objective evidence that there was no tax avoidance at the time of the title trust or in the future, 2004Du2604.

With respect to the instant case, there is insufficient evidence to acknowledge that the evidence submitted by the Plaintiff alone had a clear objective of tax avoidance to the extent that there was no objective of tax avoidance in the title trust of the instant shares, or that there was no tax avoidance at the time of the title trust or in the future, and there is no other evidence to acknowledge this otherwise.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.