early 2010 Mine2027 ( December 29, 2010)

No shares are allocated for the purpose of transfer and do not constitute title trust.

In cases where the actual owner of shares becomes different from the nominal owner, it is reasonable to deem that one of the funds investors was allocated shares for the purpose of transfer to guarantee the return of the principal and interest of his/her investment in order to ensure the return of the principal and interest of his/her investment.

2011Guhap1136 Revocation of Disposition of Imposition of Gift Tax

XX Kim

The Director of the North Korean Tax Office

September 27, 2011

November 1, 2011

1. The Defendant’s disposition of imposition of gift tax amounting to KRW 485.230 against the Plaintiff on April 6, 2010 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

The director of Seoul Regional Tax Office calculated 20.8.25 to 1 December 2009 the above 20.1 to 20.4, 200, 206 shares of 20.0 to 30.1, 200, 47,60 shares of 47.67,60 shares under the name of 20.4, 30, 160 shares issued by 40, 60 shares issued by 20, 30, 50 shares issued by 40, 50 shares issued by 40, 60, 50 shares issued by 30, 60, 40, 50 shares issued by 40, 60, 50, 50 shares issued by 30, 60, 50, 40, 50, 50, 50, 60, 40, 60, 50, 60, 40, 60, 4, 60, etc.

C. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on May 27, 2010, but the Tax Tribunal dismissed the Plaintiff’s claim on December 29, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was allocated the instant shares in the name of the Plaintiff to the non-party company for the purpose of lending the new shares subscription fund to the non-party company for the purpose of securing the return of the loan, but the Defendant, without any grounds, deemed that the instant shares that the △△ should have been allocated under the name of the Plaintiff pursuant to the title trust agreement concluded between the Plaintiff and the △△, imposed gift tax on the Plaintiff by applying the provisions of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act. Thus, the Defendant’s disposition of this case was unlawful (On the other hand, while the Tax Tribunal generally denies the title trust agreement between the △△ and the financial investors, on the ground that the Plaintiff who received the allocation of shares was merely a person who lent the title to the GangwonB, the actual investor of the funds, but it was unreasonable to reject the Plaintiff’s assertion that the Plaintiff acquired shares for the purpose of securing the ownership of shares

B. Relevant statutes

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

(c) Fact of recognition;

1) Along with December 2005, the non-party company attempted to provide new shares equivalent to 4,160 shares per share to 4,160 won per share; the non-party company's major shareholder of the non-party company entered into a loan agreement with the credit business company to pay the amount equivalent to 3% of the investment amount raised as service fees to △△△ in addition to the above interest (hereinafter referred to as the "agreement on the loan of this case"). The major contents of the agreement on the loan of this case (Evidence No. 2) are as follows.

2) After December 8, 2005, ○○○○○ entered into an investment agreement (hereinafter referred to as “instant investment agreement”) with the terms and conditions that invite 11 investors, such as GangwonB, etc., the Plaintiff’s son, and pay 4% of the investment amount as interest, on the condition that it will pay the amount equivalent to the 4% of the investment amount, pursuant to the instant investment agreement, and the main contents of the said agreement (No. 2-1 through 3) are as follows.

3) The 11 investors, including DoB, entered into the instant investment agreement with △△△△, and raised KRW 1.687,296,00 with the subscription fund for new shares of the non-party company, and △△△△ was issued a cashier’s check equivalent to KRW 7% of the pride of the subscribers for new shares raised as service fees and interest in accordance with the instant financing agreement, and KRW 338,00,000 with the collateral amount, and issued the said cashier’s check to the investors in an amount equivalent to 4% of the pride of the subscription for new shares raised as interest pursuant to the instant investment agreement, and issued the said cashier’s check with subsidies.

4) Meanwhile, △△ Company participated in the capital increase issued on December 9, 2005 and agreed to issue 405,600 shares out of 477,600 shares out of 1,687,296,000 shares to be raised pursuant to the instant financing agreement and the investment agreement, and distributed to investors or a third party designated by the investors. The specific details are as follows.

(5) After that, from December 23, 2005 to February 1, 2006, 11 investors, including KangB, sold 400 new shares allocated five times from December 23, 2005 to February 1, 2006 in KRW 7,425,60,60, after deducting KRW 1,687,296,00 of the invested principal, and returned cashier's checks worth KRW 5,737,782,440 of the remaining sales amount, and KRW 338,00,000 of the secured money to △△△, and △△△ returned them to △△ as they are,.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, Eul evidence 2-1 through 3, Eul evidence 3, 4, Eul evidence 6-1 through 3, Eul evidence 6-8, and the purport of the whole pleadings

D. Determination

1) In order to establish a deemed donation of title trust for shares pursuant to Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, a change in the name of the actual owner and the nominal owner should be made in the future under an agreement between the actual owner and the nominal owner on the title trust, i.e., the agreement on the title trust of shares, or communication. Thus, if an opening statement in the name of the nominal owner was made without an agreement on the title trust, the said provision may not be applied (see Supreme Court Decision 2007Du15780, Feb. 14, 2008). In addition, in cases where the title of shares owned by a person who is likely to own for the purpose of collateral security for a claim is transferred to the creditor, not merely holding the title in the form of title trust for the debtor, but also holding a security right for its own interest. Thus, the said provision on

2) In light of the aforementioned legal principles, comprehensively taking account of the following circumstances: (a) the evidence as seen earlier and the overall purport of the pleading, which were revealed in the facts acknowledged earlier, were different from the actual owner of the instant shares and the nominal owner; and (b) the disposal of the shares installed after the acquisition of the shares and the process of settlement of the price settlement; (c) even if the Plaintiff, who is the actual owner of the instant shares and the nominal owner, are different from the Plaintiff, △ does not constitute a title trust of the instant shares; and (d) there is no other evidence to acknowledge otherwise; and (e) it is reasonable to deem that △, one of the financial investors, was allocated the instant shares in the name of the Plaintiff for the purpose of transferring the shares for the purpose of securing the return of the principal and interest of his investment; (e) thus, the provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act cannot be applied (as seen so, the proviso to a deemed donation cannot be applied to the Plaintiff; and (e) whether the Defendant’s assertion is subject to tax evasion purpose.

(A) The instant agreement on the raising of funds between △△△△ and △△△△△△△, which was issued by the investors of △△△△△△△ to secure the principal of and interest on the investment funds of 20% from the investors of △△△△△△△△△△△, and the new stocks to be acquired through the participation in the offering of new stocks shall be kept in the name of △△△△△△△△△. (Article 2(5) and preemptive rights to be derived from the offering of new stocks and new stocks shall be placed in △△△△△ (Article 6(11)), and where the total market price of new stocks allocated in the name of △△△△△△△△ and the cashier’s checks provided in the name of the investors of △△△△△△△△△△△△△△△, which was issued to the investors of △△△△△△△△△△△△△, and which was issued to secure the principal of and interest on the investment funds in the name of the investors of this case.

D) At the time of undergoing a tax investigation in relation to the instant case, △△△ was in charge of mediating the relationship between △△ and the investors. However, the actual ownership of the new shares acquired through the instant subscription to new shares was in △△. However, for the purpose of securing the return of the investment amount, the investors made payments for the subscription to new shares in their names, and some investors made a statement to the effect that it would be well aware of the reason why some investors made payments for the subscription to new shares in the name of others, and that some investors of △△△△ employee Kim K, who was in charge of the said practice, made a statement to the effect that the investors of △△△△, stated that they kept new shares as security for

E) On the other hand, it does not seem that the personal trust relationship was formed to the extent that only the title of shares was owned by △△ or investors, and there is no clear ground to deem that there was an agreement among them to title trust the new shares issued by the non-party company.

F) Meanwhile, even though shares can be the object of security by establishing a pledge right on shares, the creation of a security right by means of security by transferring the name of shares to a secured party is much more easy in terms of securing and recovering a security right. Therefore, from the standpoint of a secured party, a will to establish a security right on shares is more likely than establishing a pledge right on shares.

3) Furthermore, even if B was allocated new shares for the purpose of transfer by means of transfer, as seen above, under the name of the Plaintiff, it would eventually result in the BB’s title trust to the Plaintiff. However, even in the case of title trust, whether the provision on the constructive gift of title trust under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act may apply to the case where a title trust is held with a security right other than ownership, but Article 45-2(1) of the former Inheritance Tax and Gift Tax Act provides that the value of the relevant property shall be deemed to have been donated to the actual owner by the title holder if the title holder other than the actual owner is the nominal owner in the property requiring the transfer of rights or the registration in the exercise thereof. The purport of the above provision is to recognize an exception to the substance over form principle to realize tax justice by effectively preventing tax avoidance by using the title trust system (see, e.g., Supreme Court Decision 2003Du13649, Dec. 23, 2004).

Therefore, it is reasonable to view that even if Gangwon entrusted the right to transfer security for the instant shares to the Plaintiff, the gift tax may not be imposed on the Plaintiff by applying the provision of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act.

(4) The theory of lawsuit

The Defendant’s instant disposition imposing the instant shares on the Plaintiff, premised on the title trust of the instant shares, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.