Judgment on the fraudulent use of name of the shares of this case not nominal;

Since the shares of this case are confirmed to have been stolen against the plaintiff's will, the disposition of this case under the premise of the name transfer is unlawful.

Article 1 of the Inheritance Tax and Gift Tax Act

Daegu District Court 2017Guhap24723 Revocation of Disposition of Imposing Gift Tax

N

O Head of tax office

December 6, 2018

January 17, 2019

.

1. The Defendant’s disposition of imposing gift tax of KRW 1,259,565,690 on the Plaintiff on January 2, 2017, KRW 184,569,340 on the gift tax of October 2009, KRW 184,569,340 on the gift tax of September 201, KRW 11,685,450 on the gift tax of January 201, and KRW 138,127,940 on the gift tax of March 201 (including additional tax) is revoked.

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

Cheong-gu Office

1. Details of the disposition;

A. From 2009 to 2011, the Plaintiff acquired shares of the Z General Construction Co., Ltd., Ltd., XX (i.e., 'CC General Construction’, and V General Construction Co., Ltd. (i.e., 'BB’, hereinafter referred to as the "Co., Ltd.’) as follows, and entered in the register of shareholders of each of the above companies (hereinafter referred to as 'each of the instant shares’).

B. From August 17, 2016 to September 20, 2016, the Director of the MM Regional Tax Office conducted a gold source investigation with respect to the Plaintiff, and notified the Defendant of taxation data applying the provision on constructive gift of title trust property under Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter the same) by deeming that the actual owner of each of the instant shares was in title trust to the Plaintiff.

C. Accordingly, on January 5, 2017, the Defendant decided and notified the Plaintiff of KRW 1,259,565,69,690 as gift tax on October 19, 2009, KRW 184,569,340 as gift tax on September 9, 201, KRW 11,685,450 as gift tax on January 12, 201, KRW 138,127,940 as gift tax on March 4, 201, and KRW 1,593,948,420 as gift tax (hereinafter “instant disposition”).

D. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 21, 2017.

However, on September 21, 2017, the above appeal was dismissed.

E. The statutes related to the disposition of this case are as shown in the attached Form.

Facts that there is no dispute over recognition, Gap's evidence 1 through 4, Eul's evidence 1, 2, 4 through 6

each entry, including branch numbers, hereinafter the same shall apply), and the purport of the whole pleading.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The title change of each of the instant shares was made by AA to make a processed stock transaction by stealing the Plaintiff’s name, and thus does not constitute a title trust of shares. As such, each of the instant dispositions against which gift tax was imposed by deeming it as a gift is unlawful.

B. Determination

The provision on deemed donation under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act shall apply in cases where a real owner or a nominal owner makes a registration, etc. in the future of the nominal owner by agreement or communication with respect to property, the said provision shall not apply in cases where a registration, etc. is made by unilaterally using the nominal owner’s name without regard to the intent of the nominal owner (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14

In respect of this case, each entry of Gap evidence 5 to 32, Eul evidence 3, 7, and 8

In full view of the following circumstances, it is reasonable to view that the change of title of each of the instant shares was made through the unilateral act of identity theft of AA regardless of the Plaintiff’s intent, in view of the fact-finding results on the Z comprehensive Z construction, XX, and V comprehensive construction, and the overall purport of the arguments, and thus, it cannot be deemed that the change of title of each of the instant shares was made through the unilateral act of identity theft of AA regardless of the Plaintiff’s intent. As such, each of the instant dispositions against which gift tax was imposed on the Plaintiff on other premise

① During the Z total construction and operation of the Z, from June 2008 to June 2010, AA had been in office as a member of the SS Metropolitan City Council, from around June 2010, it appears that the Z comprehensive construction, the status of executives and shareholders in XX, by externally organizing the status of executives and shareholders in the Z, and trying to take measures to prevent any problem in the performance of parliamentary duties even if any civil or criminal matter arises in each of the above companies. Furthermore, AA appears to have taken over the V comprehensive construction from FF, GG, and H around March 201, but it did not have any legal responsibility or liability to pay taxes as an oligopolistic shareholder.

② On June 9, 2016, the Plaintiff filed an accusation against AA due to the theft of name, etc. with the Seo-gu Police Station. On June 28, 2016, the Seo-gu Police Station sent the instant case to the 00 branch office of the 00 branch office of the 00 branch office of the 00 branch office of the 00 branch office. The 00 branch office of the 00 branch office of the 00 branch office recognized the suspicion of forging private documents, etc. of AA as 20000 branch office of the 00 branch office of the 00 branch office of the 00 branch office of the 00 branch office of the 01

AA received a summary order of KRW 3,00,000 from the branch court of 00 on November 21, 2016 with respect to the above case as to the crime of forging private documents and the uttering of a falsified document, and the said summary order was finalized around that time (hereinafter referred to as "related criminal case").

③ AA는 관련 형사사건의 피의자로 경찰에서 조사를 받으면서 '원고의 동의나 승낙 없이 명의를 도용하여 이 사건 각 주식의 주식양도양수계약서를 작성한 것이 맞다'는 취지로 진술한 바 있다. AA는 이후 검찰에서 조사를 받으면서 '명의도용 사실을 잘 알지 못하였고 구체적인 절차는 GG 등 ZZ종합건설의 직원들에게 일임하였다'고 하여 일부 부인하는 취지로 진술하였다. QQ은 검찰에 참고인으로 출석하여 '원고에게 ZZ종합건설의 임원으로 등기하겠다고 부탁하여 인감도장과 인감증명서를 받았다가 실제로 등기하지 못하였을 때, 그 인감도장과 인감증명서를 이용하여 원고의 동의 없이 AA의 ZZ종합건설 주식을 원고에게 양도하였고, 당시 AA도 원고의 동의를 받지 않았다는 것을 알고 있었으며, 그 후 XX, VV종합건설의 주식이 원고에게 양도된 과정에 대해서는 전혀 알지 못한다'는 취지로 진술하였다.

④ The Plaintiff asserts that GG’s certificate of qualification for electrical construction engineer owned by the Plaintiff is only lent to the Z General Construction, or issued a certificate of qualification by requesting the registration as an officer under the name of the Z General Construction to the Z General Construction and the certificate of qualification was temporarily left in place at the Z. The Plaintiff’s statement at the prosecutor’s office also conforms to the Plaintiff’s assertion. In light of the fact that GG is the Plaintiff’s self-satise and is the senior co-satise of AA at the same time, and thus, it is highly probable that such request was made, the credibility of the above statement can be acknowledged.

⑤ There is no part written or signed by the Plaintiff on the share transfer/acquisition agreement of each of the instant shares. In addition, it appears that the Plaintiff’s certificate of personal seal impression was attached to the end of the share transfer/acquisition agreement of September 9, 2010 on the EE shares in XX, and that the Plaintiff was issued a certificate of personal seal impression from October 19, 2009 to several times. However, according to the Plaintiff’s reply on the details of the certificate of personal seal impression issued by the head of Dong 000 Gu/ 003, it is confirmed that the Plaintiff was not issued a certificate of personal seal impression immediately before the date of the said agreement. In particular, inasmuch as the Plaintiff’s certificate of personal seal impression was stated as “one copy of the transferee’s share transfer/acquisition agreement” on March 4, 201, and it appears that the Plaintiff’s certificate of personal seal impression was attached, but the Plaintiff’s certificate of personal seal impression was affixed to the contract.

In light of these points, the plaintiff's seal impression or the other person's seal impression needs.

As such, it cannot be ruled out the possibility that each share transfer contract of this case is used.

The mere fact that the Plaintiff’s seal imprint is affixed or a seal imprint is attached to the certificate is affixed to the certificate

It is difficult to see that AA entered into a stock trust agreement explicitly or implicitly with the consent of the Plaintiff.

④ Around July 2016, the Plaintiff filed a lawsuit against AA, F, GG, and KA to confirm the absence of a stock transfer and takeover contract under 00,000 district court 00,000 and 2016,000. On May 2, 2017, each of the instant shares transfer and takeover contract was null and void, and each of the instant shares, the entry of which is changed in the name of the Plaintiff, was changed, and the said decision of recommending reconciliation became final and conclusive as is, on the grounds that the parties did not raise any objection.

7) On January 12, 201, the Defendant alleged that “A” made an electronic notification of KRW 3,383,060 of the shares of a 00 comprehensive construction company to the Plaintiff on December 5, 2013, on the ground that “A” held title trust with the Plaintiff on January 12, 2011, and that the Plaintiff did not raise any objection even after receiving such electronic notification, and thus, the Plaintiff confirmed each of the instant shares. However, the said electronic notification is not a taxpayer’s e-mail, but rather a taxpayer’s e-mail, it is possible to confirm the content thereof only by accessing the National Tax Service Home System’s website. In light of the fact that the said gift tax notice was served on the Plaintiff on December 20, 2013, and AA immediately paid the gift tax, it cannot be deemed that the Plaintiff ratified each of the instant shares solely based on the circumstances cited by the Defendant.

④ In around 2011 and 2015, the Plaintiff filed a final return on global income tax by deeming that the Plaintiff received wage and salary income from the Z, Z comprehensive construction, and V comprehensive construction. However, all GG and the Plaintiff asserted that the final return on global income tax was based on a labor contract relationship concluded falsely from each of the above companies to use a certificate of qualification as an electrical construction engineer, and thus, the Plaintiff did not actually receive any wage from each of the above companies. This is only an issue of income return, and there is no direct connection with the issue of attribution of each of the instant shares. Rather, the final return on global income tax is consistent with the Plaintiff’s assertion on the grounds that the Plaintiff made the certificate of qualification and the certificate of seal impression affixed to GG.

9) The minutes of each temporary general meeting of shareholders of XX, Z total construction, and V comprehensive construction include all shareholders as attending the general meeting of shareholders. However, according to the statements of GG, each of the above provisional general meeting of shareholders does not actually have been held and only documently prepared the minutes of the general meeting of shareholders, the minutes of each of the above general meeting of shareholders cannot be deemed as the actual shareholders of each of the above companies.

3. Conclusion

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