Seoul Administrative Court-2013-Gu Partnership-58672 ( October 22, 2014)

In imposing taxes on the grounds of deemed donation of title trust, the tax authority has the burden of proving the title trust.

In view of the fact that even if the Plaintiff A is the debtor of the loan, it cannot be deemed that only the Plaintiff A was responsible for the total purchase price of the shares of this case in the internal relationship, etc., it is difficult to deem that Plaintiff BB, BB, and DD did not pay for the acquisition of the shares of this case.

Articles 60 and 63 of the Inheritance Tax and Gift Tax Act;

Seoul High Court 2014Nu62878

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Seoul Administrative Court 2013Guhap58672

February 25, 2015

March 18, 2015

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The disposition of imposition of KRW 202,06,270 of each gift tax imposed on Plaintiffs BB and CCC on October 1, 2012 (the date of the disposition written in the complaint seems to be a clerical error) by the head of the FF Tax Office; the disposition of imposition of KRW 202,06,270 of each gift tax imposed on Plaintiffs BB and CCC on October 1, 2012 (the date of the disposition written in the complaint seems to be a clerical error; and the disposition of imposition of KRW 202,06,270 of gift tax imposed on the Plaintiff CCC on October 5, 2012 (the date of the disposition written in the complaint seems to be a clerical error); the disposition of imposition of KRW 202,06,270 of gift tax imposed on Plaintiff DD; and the disposition of imposition of KRW 301,251,201,300 of gift tax imposed on Plaintiff CCC on October 26, 2012, respectively.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows, except for the addition of the judgment on the additional allegations made by the Defendants in the trial under Paragraph (2) below, and therefore, it is identical to the part of the reasoning for the judgment of the first instance. Thus, it is acceptable to accept this as it is in accordance with Article 8(2) of the Administrative Litigation Act

2. The addition;

A. The defendants' assertion (the addition of the grounds for preliminary disposition)

BB, DD, and EE do not actually take place without title trust the shares of this case

Even if the above plaintiffs acquired shares, they acquire shares of this case without compensation, since there is no price paid by the above plaintiffs to the roadside or the plaintiff CCC. Accordingly, the plaintiff BB, DD, EE is obligated to pay gift tax pursuant to Articles 2(3) and 4(1) of the Inheritance Tax and Gift Tax Act, and the plaintiff CCC is obligated to jointly pay with the above plaintiffs as donee pursuant to Article 4(4) of the same Act, so the imposition of gift tax of this case is legitimate.

B. Determination

First, we examine whether the addition of the aforementioned conjunctive disposition is legitimate, and since the subject matter of the lawsuit is objective existence of legitimate tax amount, the tax authority can either submit new data that can support the legitimacy of the tax base or tax amount recognized in the pertinent disposition or exchange and change the reasons within the scope that maintains the identity of the disposition (see, e.g., Supreme Court Decisions 97Nu2429, Oct. 24, 1997; 2000Du4873, Aug. 24, 2001). The first reason for the disposition of each of the instant preliminary disposition and the reason for the ancillary disposition are different from the composition of the taxation requirements and legal evaluation of only one objective fact for which the transfer of ownership was made with respect to the shares 1 of the instant case, and thus, the aforementioned additional disposition of the instant preliminary disposition is allowed.

However, in full view of the facts and the purport of the evidence as seen earlier, the following circumstances are revealed: ① (a) Plaintiff BB, DD, and EE provided a pledge to secure the payment of the purchase price of all the shares of this case in connection with the loan of KRW 2 billion to Plaintiff BB; and (b) it appears that the said obligation of joint and several surety was not high; (c) Plaintiff BB transferred money to Plaintiff CB amounting to KRW 67,00,000 in total to Plaintiff CCC; (d) Plaintiff BB transferred money to Plaintiff 43,50,000,000 in total; and (e) Plaintiff BB could not be deemed to have provided the acquisition price of the shares of this case to Plaintiff BB as the acquisition price of the shares of this case; and (e) Plaintiff BB and EE did not have any reason to pay the above money to Plaintiff CB, and thus, Plaintiff JB could not be deemed to have provided the acquisition price of the shares of this case to Plaintiff 1 as the acquisition price of the shares of this case.

3. Conclusion

Therefore, the judgment of the court of first instance is justified, and all appeals by the defendants are dismissed as it is without merit. It is so decided as per Disposition.