Early High Court Decision 2014J 0472 ( October 31, 2014)

The claimant shall acquire and transfer shares at a low price in the name of a third party, and shall be subject to gift tax and transfer tax.

Since the Plaintiff’s acquisition of low price by issuing capital increase with the third party allotment method does not err in the disposition imposing gift tax, and as long as the Plaintiff acquired it in the name of the branch party. As long as it was transferred, there was no error of imposition of capital

Inheritance Tax and Gift Tax Act Article 35 of the Inheritance Tax and Gift Tax Act as a donation of profits from a provisional transfer

revocation of revocation of imposition of gift tax by Suwon District Court 2014Guhap51785

YellowO et al.

O Head of the tax office

2015.08.27

2015.24

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

Each gift tax imposition specified in the separate sheet No. 1 that the Defendants against the Plaintiffs shall be revoked.

1. Details of the disposition;

A. The plaintiff Yellowq, the representative director of the dyang D&C Co., Ltd. (hereinafter referred to as "d&C") held 3,120,000 shares (Plaintiff Yellowqs 2,805,00 shares, 170,000 shares (5.45%) of the total shares of d/C together with Song F and Kimg (hereinafter referred to as "Plaintiff Yellow F&C et al.").

B. On February 2009, Plaintiff Yellowq, etc. sold 3,120,00 shares of dhphal activities to Oral Energy Co., Ltd. (hereinafter referred to as “hhhphals”), and on April 29, 2009, hhhhphals sold 10,256,410 shares of new shares of hhhhphals (hereinafter referred to as “the shares of this case”) in return for the acquisition of dhhhphal shares, not in the names such as Plaintiff Yellowq, etc., but in the names of the title trustee 10,256,410 shares of hhhhphals in return for the transfer of dhhphal shares, and the shares allocated to the title trustee 1,56 shares of rhphals, rw, r, r, r, rym, uy, u, u2, u, Kimo, Ma, Ga, 2, 5.

C. The Director of the Regional Tax Office, from May 25, 2012 to September 21, 2012, conducted a survey on the stock change real value of the instant shares, determined that the Plaintiff Yellowq, who is the actual shareholder of the instant shares, title trust the instant shares to the instant title trustee pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), and notified the Defendants, the domicile of the title trustee, of the taxation data, that the taxation data should be imposed at KRW 527,179,474, an amount calculated by multiplying the value per share of the instant shares allocated to the instant title trustee 1,025,641 by the taxable value of the gift tax.

D. Accordingly, the Defendants imposed each pertinent gift tax (including additional tax) listed in the separate sheet No. 1 on the title trustee of this case with the Plaintiff Yellowq, a donor, as a joint and several tax obligor (hereinafter “instant disposition”).

E. The Plaintiffs appealed and filed an appeal with the Tax Tribunal on June 28, 2013, but were dismissed respectively on December 5, 2013 and December 19, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 15, Eul evidence 1 to 3 (including each number, hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The title trustee of the instant case is aware that Plaintiff Yellowq was subsequently used upon the request of Plaintiff Yellowq and then approved by the title trustee of the instant case, and there was only a copy of the identification card of the title trustee of the instant case with the Plaintiff Yellowq, and there was no agreement on title trust with the Plaintiff Yellowq on the instant shares. Thus, the title trustee of the instant shares cannot be deemed to be the title trustee

2) Even if Plaintiff Yellowq was title trust with the instant shares to the instant title trustee, there was no tax avoidance purpose.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) Determination on whether a title trust is held

A) Relevant legal principles

The provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act shall apply to property, the transfer or exercise of the right of which requires registration, etc. under an agreement or communication by the de facto owner and the nominal owner. As such, where registration is unilaterally made in the name of the nominal owner regardless of the intent of the nominal owner, regardless of the intention of the nominal owner. In this case, if the tax authority proves only that the actual owner is different from the nominal owner, the verification that the registration, etc. transferred in the name of the nominal owner was made in the unilateral act of the real owner regardless of the intent of the nominal owner should be made by the nominal owner (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 2008).In addition, the title trust relationship is not necessarily established by an express contract between the truster and the trustee, but may also be established by implied agreement (see, e.g., Supreme Court Decision 200Da490

B) Considering the above evidence, Gap evidence Nos. 16, 17, and Eul evidence Nos. 4 through 6 with the overall purport of the pleadings, it is reasonable to view that the plaintiff Yellowq was title trust with the title trustee of this case by implied agreement.

① On August 11, 201, 201, Plaintiff Yellowq was investigated by the 00 regional tax office with respect to the verification of the documents on stock change in the hhhic license, and the title trustee of this case respondeded to the question that “I would issue the documents necessary for the establishment of the securities account with the knowledge that the hhhicq would acquire the instant shares,” and “I would like to talk about the circumstances in which the hhHic shares were received in return for the transfer of dhhic shares to 10 persons,” and acknowledged that there was an agreement on title trust between the title trustee of this case. ② At the time of the opening of the stock account under the name of the title trustee of this case, employees confirmed that the title trustee of this case called the cell phone of the title trustee in order to verify the authenticity of the application for the opening of the securities company’s account. After the opening of the securities account, the title trustee of this case was voluntarily set with the securities card password number and received monthly trading notice from the title trustee of this case.

③ Nevertheless, on October 16, 2012, after receiving a notice of the results of the tax investigation from the regional tax office on October 22, 2012, the title trustee filed a complaint against Plaintiff Yellowq with the charge of forging private documents and uttering thereof. ④ On February 13, 2013, Plaintiff Yellowq’s issuance of a summary order (U.S. District Court Decision 2012 High Court Decision 25740) worth KRW 5 million for the crime of forging and uttering private documents with the content that Plaintiff Yellowq’s application for the establishment of a securities account under the name of the title trustee of the instant case was forged and falsified. However, Plaintiff Yellowq’s title trust was reversed after receiving notice of the results of the tax investigation. The above summary order was also issued without deliberation in accordance with the trial proceedings, and it became final and conclusive that Plaintiff Yellowq was not subject to the said summary order, and it is difficult to see that Plaintiff Yellowq unilaterally used the shares of this case without the title trustee’s title trust agreement.

2) Determination as to whether the purpose of tax avoidance exists

A) Relevant legal principles

The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle to the effect that the act of tax avoidance by using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, the proviso to the same Article is applicable only where the purpose of tax avoidance is not included in the purpose of the title trust, and the tax prescribed in the proviso is not limited to the gift tax, and the burden of proving that there was no purpose of tax avoidance in the title trust is against the person who asserts it (see, e.g., Supreme Court Decision 2013Du16982, Jan.

Therefore, the fact that there was no objective of tax avoidance may be proven by means of verifying, etc. that there was another purpose, other than the purpose of tax avoidance. However, as the nominal owner who bears the burden of proof, the nominal owner of the burden of proof had a clear objective of tax avoidance to the extent that it is recognized that there was no objective of tax avoidance in the title trust, and the fact that there was no tax avoidance in the future at the time of the title trust or in the future, should be proven to the extent that it would not be doubtful if ordinary person is based on objective and objective evidence (see, e.g., Supreme Court Decision 2004Du11220, Sept. 22, 2006). In addition, the application of the provision on presumption of gift cannot be avoided merely by the fact that the actual owner did not have a purpose of tax avoidance (see, e.g., Supreme Court Decision 2010Du24968, Mar. 28

B) In the instant case:

First, insofar as Plaintiff Yellowq acquired the instant shares in title trust to the title trustee of this case, it is presumed that Plaintiff Yellowq had an objective of tax avoidance in light of the above legal principles. In addition, in light of the following circumstances, which can be comprehensively acknowledged by taking account of the overall purport of the arguments as seen earlier, it is insufficient to acknowledge that the presumption was followed and there was an obvious purpose of tax avoidance to the extent that the Plaintiff did not have an objective of tax avoidance, or that there was no tax avoidance at the time of title trust or at the time of the future, and there is no other evidence to support this otherwise, the Plaintiffs’ assertion

① The Plaintiff Yellowq asserts that the instant shares were distributed under the name of the title trustee, not only under the name of the Plaintiff Yellowq, but also under the name of the title trustee. However, according to the acquisition agreement entered into between Plaintiff Yellowq, etc. and the hh P, it is merely stated that the instant shares were allocated to Plaintiff Yellow P, etc. or to a third party in lieu of the payment of the said shares. ② The total number of shares issued by the hhh P was 60,302,745 shares issued by the Plaintiff on April 29, and the number of shares issued by the title trustee was 10,256,410 shares issued by the title trustee, and the number of shares issued by the Plaintiff Yellow P, who were not the title trustee, was 17% of the equity shares issued by the Plaintiff Yellow P, a beneficial shareholder, under the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 2181, May 18, 2009).

3. Conclusion

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