title trust with the purpose of tax avoidance

In full view of the fact that selling shares held in the name of the plaintiff and then purchasing shares in the name of the plaintiff again using the sale price constitutes a new title trust, the disposition that determined that the shares deposited in the account was held in title trust each year is legitimate.

2013Guhap5777 Revocation of Disposition of Imposition of Gift Tax

IsaA

Head of Seocho Tax Office

July 26, 2013

September 27, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On March 5, 2012, the Defendant revoked all the imposition of the gift tax on the Plaintiff.

1. Details of the disposition;

(a) As a result of the inheritance tax investigation on the deceased B from August 1, 201 to November 10, 201, the Director of the Central Regional Tax Office: (a) confirmed that the deceased opened a securities account (Account No. :O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O; (b) purchased stocks, etc. and confirmed that the shares, etc. were sold to the Plaintiff; (c) from 2002 to 2011; (d) on the last day of the year of 2002 to 209, the Plaintiff notified the Defendant of the gift tax on the gift tax of KRW 30,000,000, KRW 130,000,000, KRW 20,000, KRW 30,000,000, KRW 13,000,00,000.

[Ground of recognition] Facts without dispute, Gap's 1, 2, 3, 6 evidence, Eul's 1 to 11, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(i)non-existence of tax avoidance purpose;

"The deceased was seriously in a business due to the IMF foreign exchange crisis, and was in default of taxes equivalent to the OOO members due to joint and several liability of his company or secondary tax liability. The deceased was the bad credit holder due to delay in repayment of loans to financial institutions. While the deceased tried to make an investment by receiving provisional payment from DDR (hereinafter "DD"), it was difficult to open a securities account as credit bad credit holders, and it was caused to create a securities account under the Plaintiff's name as well as to cause difficulties in collecting delinquent taxes or compulsory execution when opening a securities account under his own name. However, the purpose of tax avoidance stipulated in Article 45-2 of the Inheritance Tax and Gift Tax Act (hereinafter "the Inheritance Tax and Gift Tax Act") refers to the purpose of evading taxes to be imposed later, and it does not mean that the purpose of tax avoidance was not to avoid the payment of taxes to be imposed on the deceased, but to avoid the payment of taxes in the name of the deceased, and thus, the deceased did not constitute a comprehensive tax evasion of the deceased's property under the name of the deceased.

Even if there was a tax avoidance purpose against the deceased, since the person entitled to claim the return of the money deposited in the first account and the person entitled to dispose of the money becomes the plaintiff, the acquisition of shares thereafter falls under the Plaintiff’s genuine acquisition of shares, and does not fall under the title trust. In addition, in order to recognize a constructive gift for the title trust, there should be an agreement between the title truster and the trustee to establish the title trust relationship. Even if the title trust is recognized as the title trust of shares, only the first act that the deceased purchased shares under the name of the Plaintiff constitutes the title trust, and since the act that the deceased purchased the shares in the name of the Plaintiff was not fully known by the Plaintiff as well as the change of the type of shares, it cannot be deemed a new title trust. Accordingly, each disposition of the instant case was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) At the time of the death, the Deceased was in arrears with the total amount of the national taxes listed below, and most of them were in deficit in accordance with Article 86(1) of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011; hereinafter the same).

Table 1 see Decision 4 P.C. 1

2) The deceased was employed as a director before the death of DD, and owned 73,500 shares (49%) of DD until the death from 200 to the date of death. However, the net income amount of DD from 2003 to 2009, the amount of dividends, and earned surplus in the next month are as follows.

Table 2 see Decision 5 P.C.

"3) The deceased owned 120-1,437 square meters per Ri, an O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type No. 74, an O-type O-type O-type O-type O-type No. 118,431 square meters per O-type O-type O-type O-typeO-type No. 120-1,437 square meters per O-type O-type O-type O-type O-type O-type O-type O-type O-type No. 957-3,000 square meters, and 1/6 shares per O-type O-type O-type O-type O-type No. 957-3,000 square meters, and there was no dispute over the facts of the dispute [applicable], Gap, 7, 8, 12 (including No. 12), 81, and 2 of the entire pleadings

D. Determination

1) As to the non-existence of purpose of tax avoidance

A) The legislative purport of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003); Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003); Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007); and Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 1, 2010; Act No. 9916, Jan. 1, 2010) recognizes an exception to the principle of substantial taxation to realize tax justice by effectively preventing the act of tax evasion using the title trust system. In such a case, it is possible to apply the proviso of the same Article to the extent that the title truster did not have any objective of tax avoidance.

Furthermore, whether there was a purpose of tax avoidance or not should be determined at the time of title trust, and then whether there was a tax evasion or not (see Supreme Court Decision 2003Du4300, Jan. 27, 2005).

B) In light of the following circumstances, under Article 86 of the former National Tax Collection Act and Article 83(1)1 of the former Enforcement Decree of the National Tax Collection Act (amended by Presidential Decree No. 23140, Sept. 16, 2011), where the national tax notified to the taxpayer is delinquent and the taxpayer is found to have no property, the deceased was able to take a disposition of deficits. As such, since the deceased was in arrears from around 1998 due to stock transaction in the name of the Plaintiff, it is difficult for the Plaintiff to be able to evade the payment of taxes by making a false entry into the state of non-property and evading the disposition of deficits (see, e.g., Constitutional Court en banc Decision 2004Hun-Ba40, 205Hun-Ba24, Jun. 30, 2005), since it is difficult for the Plaintiff to dispose of the deceased’s shares under his/her own name or it was difficult for the Plaintiff to have not been disposed of the shares under his/her own name until 2009 million won.

2) As to the assertion that the title trust does not constitute a title trust

In light of the above, the Plaintiff cannot be deemed to have actually acquired the shares of this case solely on the ground that the nominal holder of the account of this case was the Plaintiff or a securities company’s relationship with the Plaintiff. As long as the Plaintiff had allowed the Plaintiff to engage in stock transaction using the Plaintiff’s account, the Plaintiff would have expressed an intent to name lending the entire shares to be purchased by using the Plaintiff’s account. The Plaintiff’s sale of shares under the name of 201-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003), and the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003), and the Defendant’s sale of shares under the name of 205-2(1) and (2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007) cannot be deemed to have purchased shares under the name of the Plaintiff.

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.