Seoul Administrative Court-2015-Gu 65391 ( October 16, 2015)

It is applicable to the provision on deemed donation of title trust in case of a long-term transfer of ownership after inheritance of the title trust shares.

Even in cases where an ancestor does not enter into a change in the name of the heir after he/she succeeded to the shares held in title trust, it is difficult to deem that the provision on deemed donation pursuant to the title trust is applied, and that the title trustee would have sufficiently known the inheritance of shares, or that there was no purpose

Legal fiction of donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2015Nu65188 Revocation of Disposition of Imposition of Gift Tax

KoreaA

O Head of the tax office and four others

April 6, 2016

May 18, 2016

1. Revocation of a judgment of the first instance;

2. The plaintiff's claims against the defendants are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Each disposition imposing gift tax as stated in the separate taxation list issued by the Defendants against the Plaintiff shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the meaning of the language used in this part is the same as that of the judgment of the court of first instance (Articles 6 through 3, 9).

2. The parties' assertion

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

3. Relevant statutes;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance (from No. 12 to No. 13). Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

4. Determination

A. Of the instant disposition, as to whether the principal tax portion is lawful

1) Interpretation of the main sentence of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act

The main text of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act provides that, in case where the actual owner and the nominal owner are different from the property (excluding land and buildings; hereafter the same shall apply in this Article) which requires a registration, etc. for a transfer or exercise of the right, the value of the property shall be deemed to have been donated by the actual owner on the day (where the property is subject to a transfer of ownership, it refers to the day following the end of the year following the year to which the date of acquisition of ownership belongs) which is registered,

In full view of the following circumstances that can be seen as the content of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (hereinafter “the provision of this case”) and relevant statutes and the purport of amendment, etc., where a title trust agreement exists, the part outside the main text of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (hereinafter “out the main text of this case”) shall be deemed the date on which the registration, etc. was made if the title trust agreement exists, and the overall part (hereinafter “the overall part of this case”) shall be deemed the date on which the title trust agreement is deemed deemed as the date on which the transfer or exercise of the right is deemed deemed as the date on which the transfer of ownership was made, i.e., the property that requires the transfer or exercise of the right, but the transfer of ownership was neglected, regardless of whether there was a title trust agreement, and thus, it is reasonable to interpret that an independent ground for disposition, regardless of whether the title trust

① Under Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 18, 2002), where the actual owner and the nominal owner are different, the term “registration, etc.” refers to registration, entry, transfer, etc. under Article 31(3) of the Framework Act on National Taxes (amended by Act No. 6301 of Dec. 18, 2002), which is earlier than the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 18, 200), “where the actual owner and the nominal owner are not the nominal owner, the term “registration, etc.” refers to registration, etc. under the nominal owner’s name, notwithstanding Article 14 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 18, 202), the term “the title holder shall be deemed to have been donated from the actual owner.

② Accordingly, according to the legislative review report and review report on the amendment process (No. 7-1 and 2) under the former Inheritance Tax and Gift Tax Act, where the title holder does not transfer his/her shares for the purpose of evading tax burden through disguised distribution of shares, in order to prevent the transfer of shares by the end of the year following the year in which the date of acquisition of ownership falls, in cases where the title holder does not transfer his/her shares by the end of the year following the year in which the date of acquisition of ownership belongs, he/she imposes gift tax including the relevant shares as donated, and in cases of title trust, he/she imposes a joint and several tax liability equal to that of the trustee. The purport of the above amendment is that where the title holder does not transfer his/her shares even though he/she acquired the rights, there is a problem that the tax authority does not grasp the change of shares in the case where the title holder does not transfer his/her shares, and thus, it is intended to strengthen taxation by deeming it as a title trust, and that it does not constitute a title trust under the Inheritance Tax and Gift Tax Act.

③ Article 41-2(2) of the former Inheritance Tax and Gift Tax Act states that the phrase "where the property has been registered, etc. under another person's name" and "where the title has not been transferred under the name of the actual owner" are entered concurrently and that the overall title is an independent provision.

2) The scope of application of the overall title of this case

A) Under the principle of no taxation without law, or under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see, e.g., Supreme Court Decisions 2002Du6781, May 27, 2004; 2004Du14663, Nov. 25, 2005).

B) In light of the above legal principles, it is reasonable to view that the instant provision applies to cases where the existing shares held in title trust are acquired by inheritance, taking into account the following circumstances:

① In the instant case, the title holder shall be deemed to have been donated to the actual owner on the day following the end of the year following the year in which the date of acquisition of ownership falls, if the property is subject to transfer, and the cause of acquisition of ownership is not limited to commercial transfer, such as sale, exchange, etc. Even in accordance with the legislative review report and review report on the process of amendment, the “acquisition of ownership” in the instant overall title does not limit to commercial transfer.

② In addition, Article 9 of the Addenda to the Inheritance Tax and Gift Tax Act provides that "the ownership shall be acquired before the enforcement date of this Act and the ownership shall not be deemed to have been acquired as of the enforcement date of this Act with respect to the portion for which the transfer of ownership is not made under Article 41-2 (1) and (2) as of the enforcement date of this Act", and it does not exclude three-party relations such as inheritance from the acquisition of ownership before the enforcement date of this Act.

③ The legislative purport of the instant provision lies in: (a) a matter that does not understand the change of shares in a case where a transfer is not made even after acquiring the right, and (b) the substance is the same as that of a title trust in a case where a long-term transfer is not made; and (c) thus, (d) an attempt to strengthen taxation by deeming it as a title trust.

④ In light of the fact that the proviso of Article 41-2(2) of the former Inheritance Tax and Gift Tax Act did not provide for "the method for remedying the existing title trustee if the heir does not transfer the ownership of the shares already trusted," the Plaintiff asserts that the proviso of Article 41-2(2) of the former Inheritance Tax and Gift Tax Act does not apply to cases where the transferor acquired shares already trusted by inheritance. In addition, the proviso of Article 41-2(2) of the former Inheritance Tax and Gift Tax Act does not allow the tax authority to prove the purpose of tax avoidance by preventing the transferor from estimatinging the purpose of tax avoidance in cases where the transferor reports the details of ownership change along with the report under Articles 105 and 110 of the Income Tax Act or the report under Article 10 of the Securities Transaction Tax Act. Accordingly, even if the transferor proves that the transferor had the purpose of tax avoidance, the gift would still be deemed to have been a gift under the title trustee, and the existing title trustee of the Republic of Korea shall not apply to cases where the shares were acquired by inheritance under the existing proviso of Article 4(2) of the Inheritance Tax Act.

⑤ If it is interpreted that the overall title of this case applies only to “where a transferee acquires shares in the name of a stock,” as alleged by the Plaintiff, the gift tax may not be imposed even if the actual owner of the stock transfers shares in the name of a stock, such as “donation,” and even if the transferee of the ownership fails to transfer the shares for a long time, even if the actual owner of the shares transfers shares in the name of a stock, by means of sale, exchange, gift, etc., and even if the actual owner of the shares transfers shares in the name of a third party, the gift tax may not be imposed even if the transferee of the shares fails to transfer the ownership for a long time. In particular, if a title trust relationship is established once more, it would be contrary to the legislative intent of the instant provision in that it would make it possible to maintain the title trust relationship without any sanction even if the actual owner of shares changes several times

(6) In the event that the transferor does not have any intention of the title trust or the transfer of title, if the transferee acquired the shares and did not transfer the ownership for a long time, there is a need to protect the transferor in good faith in that the transferor imposes gift tax on the transferor on the grounds that the transferor was not involved in the transferor. However, in such a case, the transferor in good faith may escape from the application of the instant provision by proving that the transferor was not subject to tax avoidance pursuant to the proviso to the instant provision. Therefore, it is difficult to view that the meaning of the “acquisition of ownership” of the instant provision should be reduced to the case where the transferor

7) The Plaintiff asserts that, when a title truster of shares dies, it is not easy for the title truster to take a transfer procedure following inheritance by finding out the death of the title truster and the inheritance relationship arising therefrom, and it is difficult to view that the title truster bears such transfer duty. The title trustee who has already transferred shares under his own name does not have the right to claim the transfer of title under the title truster’s name to the company, and thus, there is no need to levy the gift tax pursuant to the overall title of this case against the title trustee who has already paid the gift tax pursuant to the out-of-the-title of this case. However, in the case of the Korea Stock Exchange, the title trustee may not be deemed to have acquired the shares of this case solely on the ground that there was no purpose of tax avoidance through all circumstances, including the fact that the title truster regularly verified the change of the title truster’s personal status and the fact that the title truster had taken measures to resolve the title trust relationship, such as requesting the transfer of title to his heir. In light of the fact that there is no reason to exclude the transfer of ownership from the part of this case.

3) Whether it goes against the principle of self-responsibility

The Plaintiff asserts that, if the overall title of this case applies to the case where the shares already held in title trust are acquired by inheritance, the existing title trustee is subject to double gift tax regardless of his/her own responsibility due to neglect of entry of the heir. However, the existing title trustee cannot be deemed liable for establishing the first title trust relationship at his/her own will. However, the instant provision provides a period for resolving the title trust relationship by the end of the year following the year following the year in which shares are acquired by inheritance, so the instant provision does not constitute a provision contrary to the principle of self-responsibility. In addition, in cases where the title trustee cannot be deemed to have known of the inheritance of shares or neglected the title transfer who is the actual owner due to joint inheritance, etc., he/she cannot be deemed to have known of the inheritance of shares, or has neglected the title transfer who is the actual owner due to joint inheritance, etc., it cannot be deemed that the title trustee is exempt from the burden of gift tax under the instant overall title trustee’s own responsibility.

4) Whether there is a problem of double taxation and retroactive taxation

A) The Plaintiff asserts that, in cases where the instant provision applies to cases where the shares already held in title trust are acquired by inheritance, the existing title trustee is liable for gift tax on the existing title trust act twice. However, the provision on deemed donation provides a representative adjustment tax that imposes sanctions on certain acts. As such, imposing gift tax on the title trust between the decedent and the title trustee is subject to gift tax on the title trust made between the decedent and the title trustee. On the other hand, the imposition of gift tax on the grounds that the heir did not transfer ownership, even if he/she acquired shares already held in title trust, cannot be deemed as imposing a gift tax on the heir and the title trustee, and it cannot be deemed as a double taxation on the same taxable object.

B) The Plaintiff asserts that even if the Plaintiff satisfied the taxation requirement, the instant disposition constitutes a retroactive taxation contrary to the existing non-taxation practice.

The principle of prohibition of retroactive taxation shall apply only to cases where there are special circumstances that are deemed consistent with the justice to protect the taxpayer’s trust even if there are sacrificeing the principle of legality. The interpretation of the tax law or the practice of national tax administration, which is generally accepted by the taxpayers, is to the extent that it is not unreasonable for the taxpayer to believe such interpretation or practice to be accepted by the general taxpayers who are not a specific taxpayer without any objection even if erroneous interpretation or practice is done, and it cannot be deemed that such interpretation or practice exists merely on the ground that there was a public opinion on the standard of interpretation of the tax law. The burden of proving such interpretation or practice is the taxpayer (see, e.g., Supreme Court Decisions 91Nu13670, Sept. 8, 1992; 2002Du172, Oct. 25, 2002).

According to the purport of Gap evidence No. 6 and the whole pleadings, although the National Tax Service's established rule (written 4 team-511) of March 7, 2006 does not include cases where "in relation to the provisions of this case, the shares trusted in title are acquired by inheritance," it does not include cases where "in relation to the provisions of this case, the shares trusted in title are acquired by inheritance." However, in light of the above legal principles, the fact that the provisions of the National Tax Service established by the National Tax Service are generally accepted by taxpayers cannot be deemed to exist in the interpretation of the tax law or the practices of taxation administration (the National Tax Service, on July 22, 2011, did not change the title of the heir even if the heir acquired the shares trusted in title by the decedent's acquisition of the shares trusted in title, it constitutes a deemed donation of title trust under the provisions of this case). Therefore, there is no specific evidence to acknowledge that the plaintiff had a non-taxation practice in the tax administration otherwise asserted by the plaintiff. Therefore, the plaintiff's above assertion

5) In the instant case:

Although the Plaintiff acquired the shares of this case by inheritance from the deceased on March 1, 1979, the fact that the Plaintiff did not enter the transfer under its name on January 1, 2003, which is deemed the date of acquisition of ownership under Article 9 of the Addenda of the former Inheritance Tax and Gift Tax Act, is as seen earlier (i.e., the date of donation proposal, not later than January 1, 2005). Therefore, it is deemed that SongCC et al., the title holder of the shares of this case, and four other persons are deemed to have donated the value of the shares of this case from the Plaintiff, the actual owner on January 1, 2005.

The Plaintiff asserted that: (a) there was no other special reason to deem that SongCC and four other were aware of the inheritance of shares, or that there was a neglect of entry as to who was the heir; (b) however, there was no evidence to acknowledge the inheritance; (c) according to the overall purport of the entries and pleadings in the evidence Nos. 6, No. 2-2, No. 3 and No. 4, the instant company was originally one BB company; (d) HanB was appointed from HanB and four others; (b) the Plaintiff was appointed to appoint directors in 1979, 1980, after the inheritance of the instant shares; (c) there was a lack of evidence to acknowledge that the Plaintiff failed to report the transfer of shares to the title trustee from 2005 to 2008; and (d) there was no other reason to recognize that the Plaintiff failed to report the transfer of shares in relation to the inheritance of the instant shares to the Plaintiff.

Therefore, the main tax of the instant disposition that designated the Plaintiff as the Defendant’s joint and several taxpayers pursuant to the instant provision and Article 4(4) of the former Inheritance Tax and Gift Tax Act is lawful, and the Plaintiff’s assertion on a different premise is without merit.

B. As to the lawfulness of the part of the disposition of this case

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims where a taxpayer violates a tax return and tax liability, etc. as prescribed by the law without justifiable grounds, and should be imposed as to nonperformance of tax obligations, unless there is any justifiable reason not to do so to the taxpayer (see, e.g., Supreme Court Decision 9Du7876, Jan. 30, 2001). In determining a justifiable reason, the taxpayer’s intentional intent or negligence is not considered, and the land or mistake of the law does not constitute a justifiable reason (see, e.g., Supreme Court Decision 2013Du1829, May 23, 2013).

In light of the above legal principles, it is insufficient to view the instant case to have been formed only by the regulations of the National Tax Service presented by the Plaintiff, and thus, it cannot be deemed as a justifiable ground for exemption from additional tax, since failure to perform the duty to report and pay gift tax on the basis of the interpretation of the established rules of the National Tax Service based on the interpretation of the above established rules of the National Tax Service does not constitute a justifiable ground for exemption from additional tax, as it is nothing

5. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the appeal by the defendants shall be accepted, and the judgment of the court of first instance shall be revoked, and all of the plaintiff's claims against the defendants shall be dismissed as per Disposition