Seocho-2018- Busan District Court-0258 ( May 24, 2018)

If the actual owner and the nominal owner are different, the value of the property shall be deemed to have been donated by the actual owner to the nominal owner.

If the actual owner and the nominal owner are different, the value of the property shall be donated to the actual owner, and it shall not be readily concluded that it is an unlawful disposition unless it proves that the other party is not eligible to receive the application of the empirical rule.

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

2018Guhap23610 Revocation of Disposition of Imposing gift tax

SAA

○○ Head of tax office

March 22, 2019

April 19, 2019

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of gift tax of KRW 3,931,200 on April 1, 2013 and KRW 15,08,030 on August 1, 2014 against the Plaintiff on September 1, 2017 is revoked.

1. Details of the disposition;

A. AA (hereinafter referred to as "A") was established on October 6, 2008 as a corporation engaged in a window-hosing, steel construction business, etc., and the details of changes in the shares of AA are as listed below.

B. AA Global Co., Ltd. (formerly: AAA Holdings, Ltd.; hereinafter “AA Global”) was a corporation engaged in a title work, steel product construction business, etc., and was established on May 21, 2013 as capital of 50,000,000, total number of 10,000 shares. On August 8, 2014, 2014, capital with capital increase of 40,000 shares with capital increase to 250,000,000 shares with capital increase to 50,000 shares.

C. Upon the establishment of AA Global on May 21, 2013, the Plaintiff acquired 4,800 shares. On August 8, 2014, the Plaintiff acquired 19,200 shares issued through capital increase with additional shares issued on August 8, 2014, and acquired 24,00 shares in total (hereinafter “instant shares”). The details of the AA global shares change are as listed below.

D. Meanwhile, at the time of the AA global establishment, leap○ was in arrears with the tax of KRW 431,736,720 [The amount of global real estate tax + KRW 851,100 + KRW 1,056,260 + transfer income tax + KRW 67,325,00 + global income tax + KRW 316,293,720 + global income tax + KRW 46,210,640].

E. From March 16, 2017 to April 24, 2017, the ○○ regional tax office conducted an investigation of gift tax on AA Global; conducted an investigation of changes in stocks of Plaintiffs, Kim○○, Yang○○, and KimB from April 24, 2017 to May 13, 2017 (hereinafter collectively referred to as “instant investigation”); and determined that leap○ was a shareholder of AA and AAB, who is one of the parties to the instant shares, and that leap○ held the title trust to the Plaintiff.

F. Accordingly, on September 1, 2017, the Defendant calculated the value of donated property of KRW 24,00,000 per share of KRW 5,000,00 per share acquired on May 21, 2013 for the Plaintiff (=4,800 x 5,000 won), and the value of donated property acquired on August 8, 2014 for KRW 88,243,200 per share of the appraised value in accordance with the supplementary assessment method and assessed the value of donated property of KRW 4,596 per share as KRW 88,243,200 per share (= KRW 19,200 x 4,596 won) as the value of donated property of KRW 3,931,20 per share and KRW 15,08,00,000 per share of KRW 15,308,030 on August 15, 2014.

G. The Plaintiff appealed and filed an appeal with the Tax Tribunal on November 3, 2017, but the Tax Tribunal dismissed the Plaintiff’s claim on May 24, 2018.

Facts without any dispute, Gap evidence 1, Eul evidence 2, Eul evidence 2 through Eul evidence 3, Eul evidence 9 through Eul evidence 10, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination on the legitimacy of the instant disposition

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff’s actual shareholder who contributed capital at the time of the establishment of AA Global and capital increase by issuing new shares does not have any title trust with the instant shares. Therefore, the instant disposition that imposed gift tax on the Plaintiff by deeming leap○ to have donated the instant shares to the Plaintiff pursuant to Article 45-2(1) of the Inheritance Tax and Gift Tax Act is unlawful.

2) The defendant's assertion

AA Global is a company of leap○. Since the instant shares are title trusted by leap○, the instant disposition that imposed gift tax by deeming leap○ to have donated the instant shares to the Plaintiff pursuant to Article 45-2(1) of the Inheritance Tax and Gift Tax Act is lawful. Even if the AA Global is not a company of leap○, even if it is assumed that the title truster cannot be specified, the Plaintiff does not have any property contributed to the acquisition of the instant shares, and there is no change in the position of the title trustee of the instant shares.

B. Relevant statutes

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

C. Determination

1) Relevant legal principles

The provisions on deemed donation of trust property under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007) shall apply to property (excluding land and buildings) requiring registration, etc. for the transfer or exercise of rights where the actual owner and the nominal owner are different from the actual owner. In such a case, the tax authority must prove that the nominal owner of the property differs from the actual owner (see, e.g., Supreme Court Decision 2009Du5404, Sept. 24, 2009). However, if it is revealed that the facts alleged in light of the empirical rule in the course of specific litigation are proven, the said taxation disposition cannot be readily concluded to be illegal disposition that the other party did not prove the circumstances that the pertinent facts in question cannot be eligible for the application of the empirical rule, unless the said taxation disposition satisfies the taxation requirement (see, e.g., Supreme Court Decisions 2009Du6988, Sept. 10, 2009).

2) Specific determination

In light of the legal principles as seen earlier, in light of the following facts, Eul evidence Nos. 2, Eul evidence Nos. 4 through 8, Eul evidence Nos. 11 through 13, Eul evidence Nos. 16, Eul evidence Nos. 18 through Eul evidence Nos. 28, and the overall purport of the pleadings, the following circumstances acknowledged as a whole are sufficiently recognized in light of the legal principles as seen earlier:

A) The circumstances leading to the payment of capital at the time of establishment of the AA Global

(1) Upon receiving a request from the Plaintiff to lend KRW 70,000,000 from the Plaintiff, the representative KimA of the new ○ industry sent KRW 70,000 to the ○○○○ on May 10, 2013 in accordance with the direction of the ○○○. Among them, KRW 50,000,000 was used for the payment of capital at the time of the establishment of the AA Global. After that, on May 22, 2013, KimA received from the Plaintiff a total of KRW 70,000,000 from the Plaintiff, including KRW 50,000,000,000, from A, and received a refund from the Plaintiff. Ultimately, at the time of the establishment of the AA Global, the capital of KRW 50,000,000 was paid out by the ○○ from the funds borrowed from the ○○.

(2) As seen below, on May 10, 2013, KimA deposited KRW 70,00,000 from the account of Gangnam (CC Food) which is the head of thisCC’s receipt on May 10, 2013. The Gangwon○ deposit KRW 15,50,000, and KRW 25,000 for KimD and KRW 30,000 for KimE on the same day. The ○○○ deposited KRW 83,300,000 in the account of the Plaintiff’s account on May 21, 2013. The Plaintiff deposited KRW 50,000 in the account of the Plaintiff’s ○○○○○○○○○○○○○○○○○○ branch on the same day, and deposited KRW 50,000,000 in the account of the Plaintiff’s account on May 22, 2013, the Plaintiff deposited KRW 50,000,000 for each of the above accounts.

(3) The Plaintiff asserts that 50,000,000 won was paid directly, as stated in the above account details, by receiving capital from Kim○○ and Yang○○○○○○, but the Plaintiff’s direct payment of capital in cash at the ○○○○○○ branch located in ○○○○○○○○○○○○○○○○○, is very exceptional; ② it is difficult to find objective materials to deem that the Plaintiff, Kim○○, and Yang○○○ branch made the actual contribution at the time of the establishment of AAB global, in full view of the following: (a) the Plaintiff’s direct payment of capital in cash at the ○○○○ branch located in ○○○○○○○; and (b)

B) The process for the payment of capital at the time of AA Global Capital Increase Subscription

(1) AA글로벌의 경리를 담당한 정○○의 업무노트 등에 의하면, 윤○의 자금으로 AA글로벌의 유상증자 대금이 납입된 사실이 확인된다. 즉 2014. 7. 24.자 업무노트에는 "2억 만들기, ☆☆ 5천, ★★ 8천, 양○○ 8천, 2억 1천"으로, 2014. 7.25.자 업무노트에는 "윤대표님이 갖고 오신 양○○ 3천 현금 입금 -> 금고보관 -> 이후 AA글로벌 2억 증자 用"으로, 2014. 7. 29.자 업무노트에는 "기업 -> 현금인출 3천만원 (대표자 가수금) 2억 증자용"으로 각 기재되어 있는바, 이에 의하면 윤○이 AA글로벌의 증자대금을 마련한 과정이나 그 내역을 엿볼 수 있다.

(2) With respect to the process of paying the AA Global’s capital increase, the Plaintiff asserted that the Plaintiff and Yang○○○ deposited KRW 200,000,000 in the corporate account by delivering the capital increase to the representative director, and that he/she contributed to KRW 96,00,000 in his/her own capital increase, but the Plaintiff asserted that he/she was using KRW 96,00,000 in the preparatory document dated October 16, 2018 as the capital increase, and that he/she did not have any consistency in his/her assertion on the source of the capital increase, such as claiming that he/she paid the capital increase by borrowing KRW 96,00,000 from the ○○○○○○○’s capital increase, and that he/she was unable to accept the Plaintiff’s assertion that he/she borrowed KRW 96,00,000 from the AA Global global capital increase, and that he/she did not have any other way to request the Plaintiff to borrow the money from the ○○○○’s account.

(3) Furthermore, the Plaintiff asserted that Kim ○○ made up of the AA Global capital increase and made a representative director to pay for the capital increase of KRW 96,00,000 from Kim○○, and that the representative director was changed to Kim○○. However, although it is apparent that AAA’s capital increase was made on August 8, 2014, and Kim○ was made on December 2, 2013, which was about eight months before the AA Global’s representative director, and it is difficult to believe that the Plaintiff’s assertion on this part is inconsistent with time and later.

(4) In this case, no objective data can be found to deem that the Plaintiff, Kim ○, and Yang ○○○ directly contributed to the AAB global capital at the time of issuing new shares.

C) AA Global is a single company, which is practically leap ○

(1) The KimA, the representative of the new ○ industry, used the office identical to AA, and the regular ○○ was in the position to know in detail the management and operation forms of AA Global as the accounting staff of A and AA Global. In the course of the instant investigation, KimA stated in the following: (a) during the instant investigation, KimA and AA Global was actually the same company; (b) ○○ was in fact aware of the company’s actual death; and (c) ○○ was in the same manner as the AA and AA global customer; and (d) ○○ was in the same manner as the accounting staff, the actual representative of AA and AA Global was 0, and all of the approvals related to the work was ○.

(2) According to the work-for-the-spot’s work-for-the-spot, the term “leap representative” is used, and all AA Global funds have been executed by the direction of leap○, and the contents written in relation to AA and AA Global funds are consistent with the actual withdrawals of the corporate account.

(3) The AA Global Fund was frequently executed on the part of the private expense of ○○, including, but not limited to, the former ○○, a child leapA, a leB’s overseas stay expenses, travel expenses, and car purchase expenses of leb. The former ○, a leb’s leb’s son’s son’s son’s son’s son’s son’s son’s her son’

(4) On the other hand, Kim○-○, recorded as a representative director in the corporate register, used the name of "AA Global Chairman and Vice-Chairperson of the Corporation and the Vice-Chairperson of the Corporation and the Vice-Chairperson of the Corporation and the Vice-Chairperson of the Corporation and the Corporation and the Corporation of the Do in Do of Do in Do, a party to AA, entered into the corporate register. In addition, the recipient of the estimate on September 2, 2014, written as "the Vice-Chairperson of the AA Kim○○" and written as "the Vice-Chairperson of the minutes on September 25, 2014 inside the AA," and written as "the Vice-Chairperson Kim○-○."

(5) The head office of AA Global is located in the corporate register in ○○○○○, ○○○, 205, ○○○○○○○, ○○○○○○, and ○○○○○○○, but the result of the Defendant’s on-site investigation was closed, and the actual affairs of AA Global were carried out in the workplace of AA located at ○○, which is located at ○○○, ○○, and ○○○, but the actual affairs of AA Global were carried out in the workplace of AA. The organization of the representative director was described only in AA Global’s telephone numbers and facsimile numbers, and Kim○ was described as the deputy head.

(6) On February 20, 2012, in ○○○○○○○○○○○○ case related to the relevant criminal case, KimD lent its name only to a court, and the actual representative of AA submitted a written confirmation of the fact that the actual owner of AA and 16,00 shares owned by her own, respectively, to the court that 10,000 shares owned by her own, were owned by her own her own her own her own her. Moreover, her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

(7) In the tax investigation, KimCC stated that the husband, who is the husband, brought about his seal imprint to his own seal imprint and registered as a shareholder, that the above shares are highly likely to be the shares held in title trust by le○.

(8) There is no evidence to deem that the Plaintiff, Kim ○, and Yang ○○ received dividends from AA Global or exercised influence over the company as the largest shareholder.

3) Sub-decisions

Therefore, the instant shares are deemed to have been donated to the Plaintiff pursuant to Article 45-2(1) of the Inheritance Tax and Gift Tax Act, inasmuch as the instant shares were held in title by the Plaintiff, the actual owner of which is the title, and the instant disposition that the Defendant imposed gift tax on the instant shares is lawful.

3. Conclusion

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