Seocho 2014west 1948 ( October 13, 2014)

If registered shares are issued, the name, address, etc. of shareholders in the register of shareholders shall be entered and distinguished from acquisition by sale and purchase.

In the event that new shares are allocated through the offering of new shares by a third party, the name and address of each shareholder in the register of shareholders, the class and number of shares held by each shareholder, and the date of acquisition of each shares shall be recorded, which is distinguishable from the acquisition of shares by trading that is not subject to the commercial

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

2015Guhap70533 Revocation of Disposition of Imposition of Gift Tax

South AAA and 1

Head of Namyang District Tax Office

April 26, 2016

June 7, 2016

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

With respect to Plaintiff South A on September 25, 2014, KRW 14,420,442, and Plaintiff KimA

The imposition of each gift tax of KRW 34,638,91 shall be revoked.

1. Details of the disposition;

A. On April 29, 2009, the Plaintiffs participated in the allocation of new shares to a third party of RB, Co., Ltd., Ltd., with the allocation of new shares 1,153,846 shares (39,99,940 shares per share), and Plaintiff KimA was allocated new shares 1,282,051 shares (the share price of 49,99,890 shares), respectively.

B. On June 12, 2013, the Defendant deemed that the Plaintiffs received title trust from J, and determined and notified the Plaintiffs of KRW 215,04,470 (Plaintiff South A), and KRW 251,095,610 (Plaintiff KimA), respectively, as gift tax by applying Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010).

다. 원고들은 ① 주위적으로, 이JJ와 명의신탁에 대한 아무런 합의가 없었고, 단지 이JJ와 이SS이 공모하여 원고들의 명의를 도용해 증권계좌를 개설하여 이용한 것일 뿐이므로, 원고들이 이JJ로부터 주식을 명의신탁 받았다고 할 수 없다. ② 예비적으로, 원고들의 명의로 배정받은 신주 중 각 1,000,000주 합계 2,000,000주는 배정받은 때로부터 3개월 이내에 이JJ에게 반환하였으므로 증여세 과세대상이 될 수 없다. 라고 주장하면서 2014. 1. 23. 조세심판원에 심판청구를 하였고, 조세심판원은 원고들의 주장 중 주위적 주장은 배척하고 예비적 주장만을 받아들여 2014. 5. 26.��원고들명의의 증권계좌로부터 2009. 5. 26. 출고된 주식회사 RB 발행 주식 2,000,000주가 이JJ에게 반환되었는지 여부를 재조사하여 그 결과에 따라 과세표준 및 세액을 경정하고, 나머지 심판청구는 기각한다.라는 내용의 재조사결정을 하였다

(hereinafter referred to as "the re-audit decision of this case").

D. As a result of re-audit, the Defendant: (a) deemed that each of the shares allocated in the name of the Plaintiffs was released on May 26, 2009 and returned to J on May 26, 2009; and (b) deemed that the shares were not subject to gift tax; and (c) determined that only 153,846 shares and 282,051 shares (hereinafter “instant shares”) are subject to gift tax on September 19, 2014 (hereinafter “the instant reduction”). (d) determined that gift tax shall be reduced to 14,420,442 won (Plaintiff SouthA), 34,638,91 won (Plaintiff KimA), respectively (hereinafter “the instant reduction”).

E. Meanwhile, on June 2, 2014, the Plaintiffs received the instant re-audit decision, received the instant reduction decision on September 25, 2014, and filed the instant lawsuit on December 19, 2014. [Grounds for recognition] The Plaintiffs did not dispute, Gap’s evidence Nos. 1 through 4, Eul’s evidence No. 1, and the purport of the entire pleadings.

2. Judgment on the defendant's main defense

The defendant argues that the lawsuit in this case was unlawful because it constitutes a rejection decision, which actually rejected the plaintiffs' primary assertion (the plaintiff is not a trustee in title). However, the period for filing the lawsuit in this case after the lapse of 90 days from June 2, 2014, upon receipt of the decision of reinvestigation, is not the time when the decision of reinvestigation was notified, but the date when the claimant is notified of the subsequent disposition (Supreme Court en banc Decision 2007Du12514 Decided June 25, 2010). This legal principle applies not only to the case where the re-examination order the whole of one taxation unit, but also to the case where the re-audit order is issued as to some of them (only if the period for filing the lawsuit in this case is calculated from the date when the claimant received the decision of reexamination through legitimate procedure of the previous trial on the initial disposition to calculate the period for filing the lawsuit from the date when the decision of reexamination was received, it cannot be seen that the plaintiffs' claim in this case was rejected within 90 days from the date of receiving the notification of the subsequent disposition.

3. Whether the disposition is lawful;

A. The plaintiffs' assertion

The plaintiffs, upon the request of the SS and later, knew that thisJ was used after obtaining the plaintiffs' permission, and did not lend the plaintiffs' securities cards and identification cards, and did not lend the names of the shares of this case. In other words, since the plaintiffs were stolen from thisJ, they cannot be deemed to be the title trustee of the shares of this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

The title trust relationship is not necessarily established by the explicit contract between the truster and the trustee, but can also be established by implied agreement (Supreme Court Decision 2000Da49091 Decided January 5, 2001). In full view of each of the above evidence, Gap evidence, Gap evidence, and Eul evidence Nos. 5, 6, and Eul evidence No. 2, the plaintiffs delivered the securities card and identification card in the names of the plaintiffs that can be used for the stock transaction upon request from the SS, and the above documents were known to the fact that the above documents were transferred to the J. Thus, it is reasonable to deem that the plaintiffs received the instant shares under title trust by this J by implied agreement.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as there is no reason.