early 2010 Heavy2465 ( October 12, 2010)

As the trustee is a co-car of the truster, the title trustee constitutes a title trust with the tax avoidance purpose.

Considering that the trustee is a truster and an employee of the non-party company, it is deemed that the title trustee is a title trust under an agreement with the purpose of tax avoidance, and it is legitimate to calculate the value of donated property according to the supplementary evaluation method as there is no fact of trading, appraisal, expropriation, auction or public sale within three months before or after the date of donation.

2011Revocation of revocation of disposition imposing gift tax;

AAA

Head of the District Tax Office

January 13, 2012

February 17, 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 on the Plaintiff on May 11, 2010 is revoked.

1. Details of the disposition;

A. On July 12, 2004, Nonparty B acquired 138,000 shares of CCC Co., Ltd. (hereinafter “CCC”) under the Plaintiff’s name. Nonparty B acquired 7,200 shares among them (hereinafter “instant shares”).

B. The Defendant deemed that the actual owner of the instant shares is ParkB and the Plaintiff is merely the title trustee, and thus, deemed that the Plaintiff was donated the instant shares from ParkB by applying the legal fiction of donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act. On May 11, 2010, the Defendant imposed ○○○○ on the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on July 6, 2010, but was dismissed on October 11, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 2, and the purport of whole pleadings

A. The plaintiff's assertion

(1) The Plaintiff is a staff member of the Diplomatic Service operated by ParkB’s Gab. The Plaintiff listens to the words from ParkB that it would result in painting, and there is only fact that the Plaintiff considered it necessary to seal and brought the seal on the Diplomatic documents, and ParkB purchased the instant shares by putting the Plaintiff’s seal. Accordingly, ParkB acquired the instant shares by abusing the Plaintiff’s name, not by nominal trust, but by stealing the Plaintiff’s name.

(2) Even if family affairs and ParkB held title trust with the Plaintiff the instant shares, it constitutes a case where the instant shares are not deemed a donation pursuant to the proviso of Article 45-2(1)1 of the Inheritance Tax and Gift Tax Act, since there was no purpose of tax avoidance.

(3) Since Article 60(1) of the Inheritance Tax and Gift Tax Act provides that the value of the property on which the gift tax is levied shall be based on the market price as of the date of donation, the Defendant assessed 54,259,200 won, which is the current market price of the shares of this case, at the value of the property on which the gift tax is levied, and assessed the gift tax by applying the supplementary assessment method under the Inheritance Tax and Gift Tax Act and its Enforcement Decree.

B. Relevant statutes

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

C. Determination

(1) Whether ParkB acquired the instant shares by stealing the Plaintiff’s name

(A) The legal fiction of donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act applies to cases where the actual owner and the nominal owner enter into a registration or change of title in the name of the nominal owner by agreement or communication with respect to the property that requires the transfer or exercise of the right. As such, where the actual owner unilaterally makes a registration or change of title in the name of the nominal owner, regardless of the intent of the nominal owner, it may not be applicable. In this case, the tax authority must prove only that the actual owner is different from the nominal owner, and the fact that the registration or change of title, etc. was made by the unilateral act of the actual owner

(B) As to the instant case, the fact that the actual owner of the instant shares in the name of the Health Center is Park E-E is identical to that of the Plaintiff, it is reasonable to view that ParkB purchased the instant shares in the name of the Plaintiff, barring any special circumstance. On the other hand, the following circumstances, namely, ① the Plaintiff is an employee of GabB’s Damb and Domb’s Domb’s Domb’s Domb’s Domb’s Domb’s Domb’s Domb’s Domb’s Domb’s Domb’s Dom, ② the Plaintiff’s Domb’s Domb’s Domb’s Dom-B’s Dom-B’s Dom-B’s Domb’s Dom.’s Domb’s Dom d’s Dom.’s Domb’s Dom 2’s Dom.

(C) Therefore, the Plaintiff’s above assertion is without merit.

(2) Whether there was no purpose of tax avoidance in the title trust of the instant shares

(A) The legislative intent of Article 45-2 of the Inheritance Tax and Gift Tax Act provides for exceptions to the substance over form principle to the effect that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. In light of such legislative intent, only if the purpose of the title trust is not included in the purpose of tax avoidance, the rate of deemed donation cannot be applied by applying the proviso of the above provision, and if it is deemed that there was an intention of tax avoidance in addition to other main purpose, the burden of proving that there was no intention of tax avoidance exists no purpose of tax avoidance is against the person who asserts it.

(B) It is insufficient to acknowledge that the title trust of the instant shares did not have any tax avoidance purpose with respect to the title trust of the instant shares solely based on the health team, Gap evidence Nos. 5 through 12 (including each number, if any), the testimony by Park BB, and the party principal examination by the plaintiff. There is no evidence to acknowledge otherwise.

(C) Therefore, the Plaintiff’s above assertion is without merit.

(3) Whether the appraisal of the value of the instant shares was erroneous

(A) Article 60(1) of the Inheritance Tax and Gift Tax Act provides that "the value of an asset on which a gift tax is levied under this Act shall be based on the market price as of the date of donation (hereinafter referred to as "date of appraisal"), and Article 60(2) of the same Act provides that "the market price under paragraph (1) shall be the price generally deemed to be established when a transaction is made freely between many and unspecified persons and shall include the expropriation price, public sale price, appraisal price, and appraisal price, as prescribed by Presidential Decree." Accordingly, Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the market price shall be recognized as the market price under the conditions as prescribed by Presidential Decree" under Article 60(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act where there is a sale, appraisal, expropriation, auction or public sale within three months before or after the date of appraisal in the case of donated property." Meanwhile, in applying Article 60(3) of the Inheritance Tax and Gift Tax Act, where it is difficult to calculate the market price in question.

(B) Comprehensively taking account of the overall purport of the pleadings as to the instant case’s health team, Eul’s evidence Nos. 6-1 through 5, the fact that the Defendant did not trade, appraise, expropriate, sell, sell, or sell during the period of not more than three months before or after July 12, 2004, which was the date of deemed donation of the instant shares, is determined as KRW 10,764 per share of the instant shares by using the supplementary evaluation method pursuant to Article 60(3) of the Inheritance Tax and Gift Tax Act and Articles 54 through 56 of the Enforcement Decree of the same Act.

(C) If so, the defendant does not seem to have erred in assessing the value of the shares of this case. Thus, the plaintiff's above assertion is without merit.

3. Conclusion

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