Seoul High-2015-085 (Law No. 18, 2016)

It constitutes a stock title trust in view of the fact that the title truster acquired shares with funds and paid the sales price immediately to the title truster after selling shares.

The purpose of this study is to avoid capital gains tax for large shareholders of listed stocks through the distribution of stock ownership in view of the fact that the title truster acquired stocks with funds and paid the sales price immediately to the title truster after the sale of stocks.

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

2016Guhap8746

LAA

○ Head of tax office

on 03 October 02, 201

on October 30, 2017

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

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

Cheong-gu Office

Each disposition taken by the Defendant against the Plaintiff on September 4, 2015 on the imposition of the gift tax ○○○ (including additional taxes) and the gift tax ○○○ (including additional taxes) on September 10, 2015 shall be revoked.

1. Details of the disposition;

A. △△△ Co., Ltd. (hereinafter referred to as the “instant company”) was a corporation that carries out the development and sales business of the security chain development, etc. established on October 4, 1997 (mutual name was changed in order to △△△△△△△△ Co., Ltd. on March 30, 2007, and on March 29, 201, changed to the company △△△△△△△ Master Co., Ltd. on March 28, 201), and was listed on the KOSDAQ market on November 201, 201, and was closed on July 9, 201, and was disposed of ex officio on July 22, 2013.

B. From August 14, 2009 to August 25, 2009, the Plaintiff acquired the instant company’s shares at ○○○○○○○○○○○○○○○○○○○○, and thereafter registered as a shareholder in the instant company’s shareholder registry on September 25, 2009. From October 21, 2009 to December 9, 2009, the Plaintiff acquired a part of the shares from ○○○○○○○○○○, and transferred the remainder of the shares to ○○○○○○○○○, and registered as a shareholder in the instant company’s shareholder registry on December 31, 2009 with respect to the instant company’s shares (hereinafter “instant shares”).

C. The Director of the Regional Tax Office of Mandong, the shareholder of the instant company in the business year 2009 of the instant company, and the investigation of changes in shares against the Plaintiff, and notified the Plaintiff of the result of the investigation that: (a) under Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9924, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), the conciliationB trusted the instant shares to the Plaintiff; and (b) on June 18, 2015, the Director of the Regional Tax Office notified the Plaintiff of the result of the investigation that the Plaintiff would be notified of the total amount of KRW 00 (including additional taxes) of the gift tax on September 25, 2009 and December 31, 2009.

D. On July 14, 2015, the Plaintiff filed a request with the commissioner of a regional tax office for the review of the legality of clocks before taxation, but on August 13, 2015, the Plaintiff was determined by the commissioner of a regional tax office to adopt d

E. Accordingly, around September 4, 2015, the Defendant rendered each decision and notified the Plaintiff of KRW 00 (including additional taxes) of the gift tax on September 25, 2009, and of KRW 00 (including additional taxes) of the gift tax on September 10, 2015 on December 31, 2009 (hereinafter “instant disposition”).

F. On December 9, 2015, the Plaintiff dissatisfied with the instant disposition, filed a request for review with the Board of Audit and Inspection on December 9, 2015, but was dismissed on August 18, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1, 14 evidence, Eul evidence 1, 2, 6 through 8 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) The instant disposition is premised on the premise that the instant disposition was held in title trust with the Plaintiff as the actual owner of the instant shares. The Plaintiff is the actual owner of the instant shares, who purchased the instant shares by borrowing the acquisition price from the ChoB and paying a reasonable price therefor.

2) Even if the Plaintiff, at the time of acquiring the instant shares, was subject to capital gains tax because the Plaintiff fell under the largest shareholder of the instant company and was subject to capital gains tax, it cannot be deemed that: (a) through a review of financial statements, the Plaintiff knew in the fact that the instant company held bonds with warrants in around 2009 that, if the preemptive right is exercised, the share ratio of the instant company would fall short of 5%, which is the standard for taxation subject to capital gains tax; and (b) in fact, due to the exercise of preemptive right, the holding ratio of the instant company’s shares in the instant company in around 2012 was less than 5%; and (c) therefore, (d)

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) At the time of the review of the legality of the taxation prior to the date of taxation, the Plaintiff submitted the loan certificate of Chapter 6 and the receipt of Chapter 2 by asserting that: (a) the Plaintiff borrowed ○○0 won from the ChoB from August 10, 2009 to February 26, 2010, and repaid the ○○0 won among them; (b) the details of the loan certificate are as follows: (c) the Plaintiff sold shares within 6 months after the loan was used, and (d) the Plaintiff received ○○○ on October 29, 2009 and ○○○ on November 10, 2010 from the Plaintiff.

2) According to the financial transaction between the Plaintiff and the Plaintiff at the time of investigating the change of shares of the director of the Regional Tax Office of MadlebB, the ChoB transferred the Plaintiff the sum of 00 won from March 26, 2007 to September 20, 2012, and the Plaintiff transferred the sum of 00 won to ChoB from June 30, 2007 to April 1, 2015. The ChoB did not enter into an interest agreement with the Plaintiff or set up a security from the Plaintiff while transferring the said amount to the Plaintiff.

3) The details of financial transactions between the Plaintiff’s dynamics are as follows: most D, most E, and ChoB.

* The indication of sound indication is the amount claimed by the Plaintiff to have been repaid to ChoB through MaximumD and Maximum E.

4) The stock details of the instant company acquired in 2009 by the Plaintiff, ChoB, and ParkCC (the former spouse of ChoB) are as follows.

5) The number of shares held and shares held by the instant company by each business year of the Plaintiff, ChoB, and ParkCC are as follows.

6) 원고는 2009. 8. 4. ▲▲투자증권 사당역지점에서 계좌를 개설하였고, 조BB은 2009. 8. 3., 박CC은 2009. 7. 23. 각 같은 지점에서 각 계좌를 개설하였는데, 원고의 위 계좌의 고객 기본정보 중 휴대폰 번호가 조BB의 휴대폰 번호(○○○-○○○-○○○○)로 기재되었고, 박CC의 계좌개설시 위임장에 대리인은 조BB으로, 연락처는 조BB의 휴대폰 번호로 각 기재되었다.

7) On May 4, 2012, the Plaintiff sold all of the instant shares, and transferred the sales price ○○○○○ KRW to the account of ChoB. On May 4, 2012, the instant shares of ParkCC were disposed of on May 4, 2012, and the entire sales amount was transferred to the account of ChoB.

8) The Director of the Regional Tax Office of Manbb, in 2009, deemed that the corporation’s shares were trusted not only to the Plaintiff but also to ParkCC. The deemed donation amount calculated on the basis of the acquisition of shares and the market price per share is as follows.

[Ground of recognition] Facts without dispute, Gap's 2, 8 through 10, 14, Eul's 3 through 8 (including each number), the purport of the whole pleadings

D. Determination

1) Whether title trust of the instant shares was held

The provision on constructive gift under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act applies in cases where a de facto owner or a nominal owner makes a registration in the name of the nominal owner by agreement or communication (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 2008). The title trust relationship is not necessarily established by an express contract between the truster and the trustee, but can also be established by implied agreement (see, e.g., Supreme Court Decision 2000Da49091, Jan. 5, 2001). Whether an implied agreement on the title trust was reached shall be reasonably determined in light of social norms by comprehensively taking into account all the circumstances, such as the relationship between the truster and the trustee, the motive and background behind the trustee’s custody of the property, and the transaction details and mode between the truster and the trustee. In such cases, whether the title trust title of the property is different from the actual owner (see, e., Supreme Court Decision 2009Du547584, etc.

살피건대, 위 인정사실에다가 앞서 본 각 증거와 변론 전체의 취지를 종합하여 인정되는 다음의 여러 사정들 즉, ① 이 사건 주식은 조BB 소유의 금원으로 원고 명의로 취득된 것으로 이 사건 주식의 취득자금은 실질적으로 조BB이 모두 부담한 것인 점, ② 원고는 이 사건 주식 취득 당시 자금의 여유가 없었기 때문에 조BB으로부터 금원을 차용하였다고 주장하나, 차용 금액이 ○○○원이라는 거액임에도 불구하고, 원고와 조BB 사이에 위 금원 거래시 이자 약정이나 담보설정에 관한 약정이 없었다는 것은 이례적인 점 등에 비추어 이를 차용금으로 단정하기 어려운 점(원고는 이 사건 주식 취득 당시 ○○○원 이상의 아파트와 ○○○원 상당의 상가건물을 보유하고 있어서 조BB이 금원을 대여해주더라도 담보설정을 할 필요가 없었다고도 주장하나, 원고 주장에 의하더라도 상당한 재력을 보유하고 있는 원고가 자신의 자금을 전혀 사용하지 않고 이 사건 주식을 취득한 것 자체가 쉽게 납득이 되지 않는다), ③ 이 사건 주식은 2012. 5. 4. 전부 매도된 후 매도대금이 조BB에게 이체되었고, 박CC 명의의 이 사건 회사 주식도 같은 날 매도된 후 마찬가지로 매도대금이 조BB에게 이체된 점, ④ 원고 명의로 개설된 ▲▲투자증권의 계좌개설신청서에는 조BB의 휴대폰 번호가 기재되어 있고, 박CC 명의로 개설된 위 계좌개설신청서에도 위임장에 조BB이 대리인으로, 연락처란에 조BB의 휴대폰 번호가 기재되어 있는 점에 비추어 조BB이 원고와 박CC 명의 증권계좌 개설을 주도한 것으로 보이는 점, ⑤ 원고는 자신의 동생인 최DD, 최EE의 명의로 조BB에게 차용한 금원을 변제하였다고 주장하나, 최DD등은 조BB과 이 사건 주식 취득 이전부터 금전거래가 있었으므로 위 금액을 원고의 채무변제로 단정하기 어려운 점 등 제반 사정을 종합하여 보면, 조BB이 이 사건 주식을 원고에게 명의신탁하였다고 봄이 상당하다.

2) Whether the purpose of tax avoidance exists

The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle with the purport of effectively preventing the act of tax avoidance using the title trust system and realizing the tax justice. Thus, the proviso of the same Article can only be applied to a case where the purpose of tax avoidance is not included in the purpose of the title trust, and it cannot be deemed that there was an intention of tax avoidance. In such a case, the burden of proving that there was no intention of tax avoidance. The burden of proving that there was no intention of tax avoidance in the context of the title trust can be proved by the method of proving that there was an intention of tax avoidance other than the purpose of tax avoidance. However, the burden of proving that there was no intention of tax avoidance in the title trust, to the extent that it was recognized that there was no intention of tax avoidance in the future, and that there was no tax avoidance at the time of the title trust or there was no tax avoidance in the future, based on objective and supporting evidence, must be attested to the extent that it is not doubtful (see, e.g., Supreme Court Decisions 2007Du131368Du136.

In addition, according to Article 94 (1) 3 (a) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) and Article 157 (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010), capital gains tax on the stocks of large stockholders who hold 5% or more of the stocks of a KOSDAQ-listed corporation shall be subject to capital gains tax.

In light of the above facts, the following circumstances are determined as at the time of title trust (see, e.g., Supreme Court Decision 2003Du4300, Jan. 27, 2005). The shares of this case are shares of a KOSDAQ-listed corporation whose holding ratio is 5% or more. As of 2009, the Plaintiff and ChoBB held 3.68% and 8.1% of the total shares of this case compared to the total shares of this case. As such, it appears that it would be possible to avoid capital gains tax due to the title trust to the Plaintiff rather than the ownership of the shares in this case under their own name, and ② it is difficult to acknowledge that there was no other obvious reason to acknowledge that there was no other reason to acknowledge that the Plaintiff did not have any other purpose than the Plaintiff’s title trust (see, e.g., Supreme Court Decision 2003Du4300, Jan. 27, 2005).

Therefore, the instant disposition is lawful.

3. Conclusion

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