Seocho 2012west 2561 (No. 11, 2013)

In the event that the shares held in title trust are acquired by inheritance, the provision on deemed donation is applied.

However, there is no reason to deem otherwise that the acquisition by inheritance was made on the ground that the existence of the borrowed-name shares was already known from the time when the plaintiffs commenced the inheritance, even though there is no reason to view that the acquisition by inheritance was made on the ground that the existing nominal shares were acquired by inheritance.

2013Guhap4484 Revocation of Disposition of Imposition of Gift Tax

ThisAAA

The Head of Gangnam Tax Office et al.

May 3, 2013

June 28, 2013

1. All of the plaintiff's claims are dismissed.

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

The term "attached Form 1 Disposition Agency" means that each defendant mentioned in the "Date of Notification" shall revoke all the imposition of gift tax on the plaintiff on each date specified in the "Date of Notification". "The imposition of gift tax" and the reasons therefor.

1. Details of the disposition;

"A. This case's shares (hereinafter referred to as "the shares of this case") were held in title by the chairperson of theCC Group from around December 27, 1975 to 23 persons, such as EE, the vice-chairperson of theCC Group, from around December 27, 1975." B. This case's shares were inherited by the plaintiff as of November 2, 1996.

(C) The Defendants, applying Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") and Article 9 of the Addenda, impose each gift tax on 23 persons, including EE, who are the title trustee, and impose each gift tax (hereinafter referred to as "each of the instant dispositions") on the Plaintiff, as shown in the separate disposition list No. 1. The Plaintiff, who is dissatisfied with the request, filed a trial with the Tax Tribunal on May 15, 2012, but the said request was made on January 11, 2013.

[Basis of Recognition] The whole purport of each of the arguments described in the facts without dispute, evidence A 1 through 3 (including each number, hereinafter the same shall apply), and evidence A 1, Eul 1, and evidence A 1, and Eul 1

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

A. The plaintiff's assertion

In full view of the following circumstances, the provision of this case should not be applied to cases where a person acquires an existing title trust property by inheritance." (1) Considering the legislative purport of the provision of this case, the proviso of Article 41-2(2) of the former Inheritance Tax and Gift Tax Act, and the provision of this case can only be applied to cases where a transferor holds the name of a stock, and where a transferee acquires the shares at a cost." (2) In cases where the provision of this case is applied to cases where the shares are acquired by inheritance, there is inconsistency on which a gift tax is levied on the decedent if the heir does not change the title for a long time. In addition, it may not be recognized that the heir has a title trust property or that there is a trustee.

3) If the instant provision applies to cases where the existing shares held in title are acquired by inheritance, the existing trustee bears double gift tax regardless of his/her own responsibility.

4) If the instant provision applies even in cases where the existing shares trusted are acquired by inheritance, the existing title trustee bears the gift tax twice on one existing title trust act.

(5) On March 7, 2006, when the tax authorities did not transfer the ownership of the shares trusted by the decedent in the name of the heir after the inheritance commencement, the tax authorities made an authoritative interpretation that the provision of this case is not applicable (written 4 team-5), and "the authoritative interpretation of this case" (hereinafter referred to as "the authoritative interpretation of this case").

Attached Form 2 shall be as listed in attached Table 2.

C. Facts of recognition

1) AD on September 19, 1996, drafted a notarial deed of will (hereinafter referred to as “notarial deed of this case”) and its main contents are as follows:

(Major Contents Omitted)

2) On February 15, 2008, E has drawn up an agreement by will execution (hereinafter referred to as “instant agreement”) and its main contents are as follows:

(Major Contents Omitted)

3) Around April 201, EF, the Plaintiff’s mother, drafted a statement to the following effect:

(Major Contents Omitted)

4) Around April 201, 201, EE, the Plaintiff’s external village, drafted a statement to the following purport.

(Major Contents Omitted)

5) Around April 2011, the Plaintiff drafted a written statement to the following purport.

(Major Contents Omitted)

[Based on Recognition] Facts without dispute Eul shall be recorded in evidence 2 to 6 Eul, evidence 2 to 6, and evidence 2 to 6 Eul, and the purport of the whole argument

D. Determination

1) The meaning of the instant provision

(A) The provisions of this case are 10: (a) the actual owner of the property requiring the transfer or exercise of rights (excluding land and buildings) and 20: (b) the date when the ownership of the property is registered as the nominal owner (if the property is subject to transfer, it refers to the date following the year in which the date of acquisition of the ownership is ; (c) the value of the property is actually donated to the owner; and (d) the same shall not apply to cases where the name of the actual owner who has acquired the ownership without any tax avoidance purpose. (b) The Constitutional Court has determined that the provision on gift tax on the title trust for the purpose of tax avoidance is an appropriate means to achieve legitimate legislative purposes to prevent tax avoidance; (d) the tax avoidance method and actual ownership relationship; (e) the tax avoidance method of the decedent is 0; and (e) the tax avoidance method is 10; and (e) the tax avoidance method is less than that of the taxpayer; and (e) the tax avoidance method and tax avoidance method is less than that of the latter.

2) Whether the instant provision is applied

In full view of the following circumstances, it is reasonable to view that the previous title trust shares have been acquired by inheritance, taking into account the following circumstances revealed by adding the following evidence, the entire purport of the pleadings, and the provisions of this case also apply to cases where the existing shares are acquired by inheritance.

A) Legislative purport of the instant provision

(1) The provision of this case provides that, if the actual owner of the shares is different from the nominal owner, the value of the shares shall be deemed to have been donated to the actual owner on the day following the end of the year following the date of acquisition of the ownership, and that it shall not be limited to commercial acquisition, such as sale and exchange. (2) According to the original text of the amended Inheritance Tax and Gift Tax Act, and the reason for the proposal of the provision of this case is that if the person who acquired the shares and equity shares fails to transfer the ownership for a long time, it shall be deemed that the title truster would have received the shares and equity shares as donated, and that the former owner would not impose gift tax if the former owner does not have any relationship between the title truster and the title truster for the purpose of protecting the ownership of the shares, and if the former owner does not have any relationship between the title truster and the title truster for the purpose of protecting the ownership of the shares, it shall be deemed that the former owner would not have any effect on the acquisition of the shares for the purpose of protecting the ownership of the latter, and that the amendment does not impose gift tax for the following year.

(1) The instant provision applies in cases where the actual owner and the nominal owner register property required to register the transfer or exercise of rights in the name of the nominal owner under an agreement or communication, and where the actual owner unilaterally registers the property in the name of the nominal owner regardless of the intent of the nominal owner, and where the tax authority establishes only that the actual owner is different from the nominal owner, then the actual owner must be the nominal owner who asserts that the unilateral act of the actual owner was done regardless of the intent of the nominal owner (see Supreme Court Decision 2007Du15780, Feb. 14, 2008). Accordingly, the instant provision shall apply only where the actual owner and the title trustee agree to maintain the existing title trust relationship in cases where the existing shares acquired by inheritance, and where the heir and the title trustee agree to the existing shares in the title trust, or where it is recognized that the existing shares in the title trustee agreed to maintain the existing title trust relationship without resolving the existing title trust relationship in spite of whether the title trustee and the title trustee have inheritance.

(2) The Plaintiff asserts that, if the instant provision is applied to the acquisition of shares by inheritance, it would result in inconsistencys on which gift tax is imposed on the decedent if the heir does not change for a long time. However, as seen above, the instant provision applies only where the actual owner and the nominal owner register in the future under an agreement or communication with the decedent, and there is no agreement between the heir and the decedent on the fact that the heir will not change the title in the future, and therefore, the situation where gift tax is imposed on the decedent cannot occur, and this part of the Plaintiff’s assertion is without

(3) The following circumstances are revealed in addition to the facts recognized in the instant case back to the health team, and the entire purport of the arguments. (i) Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd.

C) Whether it violates the principle of self-responsibility

If the provision 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 or her own responsibility. However, the existing title trustee cannot be held liable for establishing the first title trust relationship according to his or her own intention, and the provision of this case grants 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, and the provision of this case does not constitute a provision contrary to the principle of self-responsibility. In addition, if the provision of this case is interpreted to apply to cases where the heir and the title trustee agreed explicitly or implicitly on the maintenance of the existing title trust relationship, the existing title trustee is responsible for maintaining the existing title trust relationship in accordance with the above agreement, and this part of the Plaintiff’s assertion that the provision of this case goes against the principle of self-responsibility cannot

D) Whether double taxation problems arise or not

The Plaintiff asserts that if the provision of this case applies to the acquisition by inheritance of existing shares held in title trust, the existing title trustee is subject to gift tax on the existing title trust act twice. However, the imposition of 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, while the imposition of gift tax on the title trustee is not subject to a new title trust made between the heir and the title trustee in accordance with the explicit or implied agreement between the heir and the title trustee, and the two cannot be regarded as double taxation on the unified taxable object. In addition, since gift tax is imposed on the establishment of a new title trust relationship under the above agreement, the provision of this case goes against the principle of excessive prohibition under the Constitution, and the Plaintiff’s assertion that the provision of this case goes against the principle of excessive prohibition under the Constitution is not acceptable (in the case of the former or in this case, the gift tax on the title trust act of thisD was not imposed

E) The position of tax authorities

On July 22, 2011, the National Tax Service issued an official document demanding to delete the interpretation of this case to "OO, 'OOOO', and 'OOOOO', which operate a website related to national tax law information on September 30, 201, by failing to enter into a change in the name of the heir in the name of the heir despite the acquisition of the shares held by the decedent in title trust constitutes a deemed donation of title trust under the provisions of this case (law and regulation-969)." In addition, on September 16, 2011, the National Tax Service deleted the authoritative interpretation of this case from the "National Tax Information System" and sent the official document requesting "OOO" to delete the interpretation of this case. Therefore, the tax authority cannot be deemed to maintain its position as alleged by the plaintiff, and this part of the plaintiff's assertion is also without merit."

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