Cho High Court Decision 201Do3781 (O4. 17)

A private document prepared and kept cannot be regarded as a "list of shareholders" under the Commercial Code of a corporation.

The act of submitting documents kept and kept private in the register of shareholders under the Commercial Act of a corporation cannot be recognized as the register of shareholders under the Commercial Act of a corporation, and a separate list of shareholders is prepared and kept by the tax authority after the expiration of the exclusion period for taxation, which constitutes the register of shareholders under the Commercial Act, is legitimate to impose penalty taxes on illegal and non-reported acts for

Article 23 of Enforcement Decree of the Inheritance Tax and Gift Tax Act

Article 47-2 of the Framework Act on National Taxes:

2012Guhap3699

Kim AA et al.

○ Head of Tax Office and one other

June 12, 2015

July 3, 2015

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

On August 10, 2011, the head of the Defendant △△ Tax Office revoked the imposition of the gift tax by KRW 00 (including KRW 000, KRW 00, KRW 00, and KRW 00,000, KRW 00) on Plaintiff KimB on August 10, 201, and the imposition of the gift tax by Defendant ○○○○○○ on August 10, 201 (including KRW 00, KRW 00, KRW 00, KRW 00, and KRW 0,000) on Plaintiff KimB.

1. Details of the disposition;

A. From May 1978, KimCC is a major shareholder and the president of ○○ Development Co., Ltd. (Gu △△△ Tourism Co., Ltd. and changed the name of the corporation to ○○○○○○ Transportation Co., Ltd., ○○○○○○○ Development Co., Ltd.; hereinafter referred to as “○○○○○ Development”) who is working as the president of ○○○ Development Co., Ltd., △△ Tourism Co., Ltd., △△△△△, △△△△ Incorporated Co., Ltd., △△△, and △△○ Development Co., Ltd., Ltd., and the

B. As of May 1, 1978, in reporting changes in the shares under the provisions of the Corporate Tax Act, KimCC reported the shares of ○○○○○○ (○○○%) as of May 1, 1978 to the competent tax office that the KimCC reported the shares of ○○○○○ (○○○○%) (○○○%) by the wife of KimCC, GE owned ○○○○○ (○○○○%) by ○○○ (○○○%) by ○○○), E, ○○○○ (○○○○%) by ○○○○ (○○○○%) and that HH owned ○○○○○ (○○○○%) by ○○○○○○ (○○○%).

Since then, on March 191, 191, Hong II prepared and submitted a detailed statement of changes in shares at the competent tax office that the number of shares is changed due to changes in the number of shares due to capital increase and par value (hereinafter referred to as "the shares of this case"), and that ○○ shares of GaD whose number of shares has changed due to the same circumstance around March 1994, the JJ respectively acquired and submitted to the competent tax office a detailed statement of changes in shares (hereinafter referred to as "the shares of this case"), including the shares of this J and Hong II as above shares and the shares added thereto).

C. From May 1998 to August 1, 1998, the National Tax Service investigated the change of shares in relation to ○○○ Development. During the investigation process, it was found that the instant shares in the name of this J and Red II were title trust shares. The KimCC reported the change of the name of the actual owner that “The instant shares were title trusted by KimCC to this J and this J, and converted to the name of the actual owner KimCC as of December 1, 1998.”

라. 김CC은 2004. 9.경 이JJ, 홍II를 원고로, 김CC 자신을 피고로 하여 이 사건 주식의 반환을 구하는 소송을 제기하였고(서울중앙지방법원 ○○○), 고의로 불출석하여 의제자백으로 원고 승소 판결을 받게 한 후 이 사건 주식의 명의를 이JJ, 홍II로 변경하였다. 또한 김CC은 홍II로부터 2004. 12. 1.경 공증인가 ○○○법률사무소에서 '원고 김BB으로부터 1991. 3. 1. 이 사건 주식 중 홍II 명의 주식을 명의신탁받았다'는 취지로 작성한 확약서를, 이JJ으로부터 2004. 12. 2.경 공증인가 □□□□법률사무소에서 '원고 김AA으로부터 1994. 3. 9. 이 사건 주식 중 이재� 명의 주식을 명의신탁받았다'는 취지로 작성한 확약서를 각 교부받았다.

E. The ○○○○ Development was listed on June 8, 2006. Since April 22, 2008 to July 3, 2008, when the ○○○ Regional Tax Office conducted a tax investigation on the ○○○ Development, KimCC had already been kept in the ○○ Regional Tax Office by asserting that it had already donated the instant shares to the Plaintiffs around 1978, and that Plaintiff KimB had already been kept in the ○○ Regional Tax Office. As of March 1, 1991, Plaintiff KimB was a shareholder, Plaintiff KimB as of March 9, 194, and Plaintiff KimA submitted a document file (hereinafter referred to as “instant list”), and share certificates.

In accordance with the instant list, the tax authority: (a) deemed that KimCC donated the instant shares to Plaintiff KimB in around 1991; (b) around 1994, the tax authority imposed gift tax only on the shares issued for capital increase for which the exclusion period has not yet expired on the Plaintiffs; and (c) subsequently, on July 9, 2008, KimCC submitted an application for correction of the title to correct the instant shares in the name of the Plaintiffs, which was in the name of J and Hong II, in the form of the J and Hong, to the Korea Securities and Futures Exchange on the same day; and (d) on the same day, reported it to the Korea Securities and Futures Exchange; and (e) on July 14, 2008

F. The head of the ○○○○○○○○○○○○○○○○○○○○○○○○. A tax investigation was conducted on the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○. As a result of the investigation, the time when the Plaintiffs received shares of this case shall be deemed to have been July 9, 2008, where the donee’s gift tax was objectively confirmed pursuant to Article 23(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24358, Feb. 15, 2013; hereinafter the same shall apply). Accordingly, the head of the △○○○○○○○○○○○○○○○○○○○○○○○ tax office’s imposition of additional tax on July 12, 201, including the additional tax on KRW 1,000 (including the additional tax on KRW 1,011.

G. On the other hand, the defendant filed a complaint with the prosecution at the same time against the plaintiffs on the charge of evading gift tax, and KimCC was prosecuted on the ground of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Seoul Central District Court 00) and the indictment details are as follows.

The KimCC filed a false claim for the return of shares with this J, Hong II, and submitted to the National Tax Service a false commitment, the list of this case, and the sovereignty. On July 14, 2008, the instant shares were owned by KimCC, and on July 14, 2008, the instant shares were donated ○○○○○○○ (total market price of ○○○○○○) to Plaintiff KimA, and ○○○○ (total market price of ○○○○○) to Plaintiff KimB, notwithstanding the fact that the instant shares were donated to Plaintiff KimB without reporting the tax base and the amount of tax under the Inheritance Tax and Gift Tax Act by pretending that the Plaintiffs were to convert their shares donated in 1978 into real name under each real owner’s name, thereby evading the imposition and collection of taxes on a permanent basis or by means of fraudulent means or other active acts, such as fraudulent and other fraudulent acts, which make it considerably difficult to impose and collect taxes difficult.

On or around September 24, 2004, the court of first instance: (a) filed a lawsuit seeking the return of shares in the name of Lee J and Hong II, on or before January 25, 2013; (b) filed a lawsuit claiming the return of shares in the name of Lee J and Hong II; and (c) the false register of shareholders and stock certificates “the act of submitting a false list, stock certificates, etc. along with the false certificates under the name of Lee J and Hong II” in the tax investigation on or around April 2008; and (c) the false list of shareholders and stock certificates were prepared and completed at any time from around 2004 to April 22, 2008 with the intent to donate shares to the plaintiffs; and (d) the core was “the act of preparing a false list and stock certificates at any time after the completion of the period from March 1, 1991 to April 206, 2006, without any reasonable doubt that the list and stock certificates were prepared by KimCC; and (c) the prosecutor’s office’s opinion and other opinion are insufficient.

Therefore, the prosecutor appealed (Seoul High Court ○○○○) and the second instance court dismissed the prosecutor’s appeal to the same effect as the first instance court’s judgment on February 5, 2015, and the prosecutor appealed again (Supreme Court ○○○).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 7, 8, 10, 11, Eul evidence Nos. 3 through 6, 9, 10, and 12 (including paper numbers, hereinafter the same), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

Article 23 (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "where the donated property is a stock, the donee shall be deemed to have acquired the relevant stocks, etc. on the date objectively confirmed by payment of dividends or exercise of shareholder's rights: Provided, That in cases where the date of receiving the relevant stocks, etc. is unclear or the address and name, etc., of the acquisitor are entered on the register of stockholders or the register of members pursuant to Article 337 or 557 of the Commercial Act before receiving the relevant stocks, etc., the date of transferring a title or entry thereof shall be the date of entry." Thus, the plaintiffs shall be deemed to have received the donation of the instant stocks in 191 and 194, which are effective on the register of stockholders under the Commercial Act pursuant to the proviso of Article 23 (2) of the former Enforcement Decree of the Inheritance Tax

Even if the imposition of gift tax against the Plaintiffs is lawful, it cannot be deemed as falling under Article 27(2)1 through 5 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012; Presidential Decree No. 23592, the same shall apply hereinafter) that provides that the act of preparing the instant list, not false, shall be subject to the imposition of penalty tax. Therefore, the penalty tax on non-

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) The time of acquisition of the instant shares

Article 2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) provides that "in accordance with this Act, gift tax shall be imposed on any donated property falling under any of the following subparagraphs as of the date of donation by a third party, as prescribed by this Act." Article 23(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "in case where the person who received the donated property is a resident, the donated property shall be the resident." Article 23(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that where the donated property is a stocks, etc., the donee shall be deemed to have acquired the donated property on the date of objective confirmation of the fact that the donee received the relevant stocks, etc. through payment of dividends or exercise of shareholder's rights: Provided, That where the date of delivery of the relevant stocks, etc. is unclear or the name, etc. is entered on the shareholder registry or employee registry before receiving the relevant stocks, whether there was a donation of stocks subject to gift tax under tax law can be determined by mutual agreement between the doctor and the status as a shareholder (see.

On July 9, 2008, the shares of this case were corrected under the names of the plaintiffs, and on the same day, the name of the shares of this case was corrected to the Korea Securities and Futures Exchange. The above facts had already been seen. As such, it is reasonable to deem that the plaintiffs acquired the shares of this case on July 9, 2008, as the plaintiffs had a de facto status to exercise shareholders' rights, pursuant to the main sentence of Article 23(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the plaintiffs acquired the shares of this case on July 9, 2008. However, if the plaintiffs transfer the title to the register of shareholders under the Commercial Act pursuant to the proviso of Article 23(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, the transfer date is deemed the acquisition of shares, and as such,

2) The meaning of the criminal judgment on KimCC

In rendering a civil judgment, even though it is not always bound by the facts established in the criminal judgment, the facts established in the judgment in the previous criminal case are valuable evidence unless there are special circumstances (see, e.g., Supreme Court Decision 88Meu3946, Feb. 14, 1989).In light of the fact that the criminal case against KimCC has not yet been finalized during the trial in the court of final appeal, and whether the register and share certificates in the criminal case have been prepared in a date by KimCC after 2004 without any reasonable doubt, it is difficult to view that KimCC was convicted twice in the criminal case that the list of this case was prepared in a false manner since 2004, and thus, it is difficult to view that the list of this case cannot be deemed to have been prepared by the above criminal judgment alone or that the list of this case can not be recognized as a list of shareholders under the Commercial Act ( even if it is a criminal record, it shall not be deemed that the list of this case has been prepared before 204 years prior to the preparation of the list of this case.

On the other hand, if the list of this case was prepared falsely before 2004, the plaintiffs' assertion that the exclusion period of gift tax should proceed in accordance with the list of this case is no longer reasonable. ② If the list of this case was prepared in a genuine manner and the list of shareholders under the Commercial Code, the plaintiffs' assertion is reasonable, but ③ if the list of this case is merely prepared in a document and cannot be seen as the list of shareholders under the Commercial Code, the plaintiffs' assertion is still groundless. Therefore, the key issue of this case is whether the list of this case can be seen as the list of shareholders under the Commercial Act.

3) Whether it falls under the register of shareholders under the Commercial Act

A) Article 352(1) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) provides that "where a company has issued a registered share, the name and address of the shareholder in the register of shareholders, the class and number of shares held by each shareholder, and the serial number of each shareholder if the company has issued a share certificate, and the date of acquisition of each share certificate." Article 396(1) and (2) of the same Act provides that "a director shall keep the register of shareholders in the principal office, and a stockholder and a creditor may request an inspection or copying of the register of shareholders at any time during business hours." Article 635(1)9 of the same Act provides that "a director shall be punished by a fine for negligence not exceeding five million won, if he/she fails to enter matters to be entered in the register of shareholders or makes a false entry."

According to the above provisions, in order to be evaluated as the list of shareholders under the Commercial Act, the contents of the list of shareholders include legal matters and at the same time, it is necessary to keep it in the principal office and guarantee free access rights of shareholders and creditors, and the directors should prepare and manage the list of shareholders.

B) Comprehensively taking account of the respective descriptions of Gap evidence Nos. 19, Eul evidence Nos. 2, 19, 27, and 29 and the overall purport of the arguments, the following facts can be acknowledged.

① In ○○○○ Development, the re- border team handled the shares and shareholders of the company, and tax-related affairs, and the C&K, working at the re- border team, prepared and managed the shareholders’ change by means of computer files before listing, the shareholders’ list attached to the settlement of accounts, and the details of stock delivery (as of March 29, 2005), and kept the “stock issuance register” and “stock receipt register.”

② All shareholders and shares-related affairs of ○○○ Development were dealt with by the shareholders’ details managed by the re-major team before listing. However, all domestic and foreign relations were conducted according to the shareholders’ details managed by the re-major team, such as corporate tax return, allocation of new shares at the time of issuing new shares, subscription, cash dividends and stock dividends, resolution of shareholders’ general meeting, reporting to the Financial Supervisory Service, etc.

③ ThisG transferred the shares of ○○○○○ Development to KimCC on July 20, 201 after establishing a pledge right with respect to the shares of ○○○○○ Development, which was owned by ○○○○○○○, and was reflected in the shareholders’ details managed by ○○ Team. This process is also reflected in the shareholder’s report in 1998 and the restoration of the shareholder’s name through fraudulent litigation in 2004 are also reflected in the shareholders’ details managed by ○○○ Development. On the other hand, the instant list is not entirely reflected in the establishment of the pledge right of GG, the report on the change of shareholder’s name in 198, and the restoration of the shareholder’s name through fraudulent litigation in

④ The representative director of ○○○ Development changed to KimCC ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and the remaining representative directors, other than KimCC, did not know the existence of the instant list.

⑤ The instant list is not known where it had been kept until now, and thus, shareholders and creditors of the company did not inspect or copy the list.

6. The address of some shareholders stated in the instant list is different from the actual one as follows.

(a) Although KimB was staying in a foreign country as an immigration departure in 1988 and had no address in Korea for 8 years from June 7, 1996 until June 6, 1996 and resided in ○○○○○○○ Dong, Seoul, ○○○○○, ○○○○, ○○, 1991, the instant list is written on March 1, 1991 as ○○○, ○○, ○○, ○○, ○○, ○○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○

"(b) ThisG has moved to ○○ Dong, Seoul in 1971, ○○ Dong, ○○ Dong, 1970, but on May 28, 1990, this case's list was still written as '○○ Dong, ○○ Dong, ○○ Dong, ○○○ Dong, 1996, and December 29, 1996.' (c) The resident registration address of thisG is from 1983 to 195, while the present list is written as '○○○ Dong, ○○○, ○○○, ○○○, ○○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, and ○○, 194.

In full view of the following circumstances that can be seen by comprehensively taking account of the above facts, the list of this case does not constitute a register of shareholders under the Commercial Act, considering that: (a) until the list of ○○○○ Development was listed, the shareholders prepared by the re-board team function as a register of shareholders; (b) the persons preparing and managing the register of shareholders could be deemed the representative director; (c) the remaining representative directors, other than KimCC, did not know the existence of the register of this case; and (d) did not know the existence of the register of this case; and (e) the list of this case omitted the legal relationship; and (e) contain some facts different from the actual facts, the list of this case does not constitute a register of shareholders under the Commercial Act. Therefore, this part of the plaintiffs’ assertion that is premised on the fact that the list of this case falls under the register of shareholders under the Commercial Act is without merit (in fact, if the representative of the non-board company has been in the register of shareholders, and only if the register of shareholders has been donated with the intent of the representative, and only the existence of the register of gift tax exclusion period violates the concept of justice).

4) Whether an additional tax on improper non-declaration is imposed

Article 47-2(1) of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010) provides that "where a taxpayer fails to file a tax base return by the statutory deadline for filing a tax return, an amount equivalent to 20/100 of the calculated tax under the tax-related Acts shall be added to the payable tax amount or deducted from the refundable tax amount." Article 47-2(2) of the former Framework Act on National Taxes provides that "Where a taxpayer violates the duty to report by improper means (referring to any method prescribed by Presidential Decree, as the taxpayer violates the duty to report the tax base or tax amount of national tax on the basis of concealing or pretending the whole or part of the fact that serves as the basis for calculating the tax base or tax amount of national tax)" provides that "where a taxpayer fails to file a tax base return by the statutory deadline for filing a tax base return, an amount equivalent to 40/100 of the calculated tax base shall be added to the amount calculated by multiplying the calculated tax amount." Article 27(2) of the former Enforcement Decree of the Framework Act provides that "an act to receive false recording, false books, document, false, fraudulent or document, fraudulent or fraudulent transactions, fraudulent or fraudulent.

In full view of the regulatory structure of Article 47-2 of the former Framework Act on National Taxes and the language and text of Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes, the reason why the imposition and collection of taxes is either impossible or considerably difficult in cases where a person liable for tax payment conceals or disguises all or part of the facts that serve as the basis for calculating the tax base of national taxes or the amount of taxes, which is the basis for calculating the amount of taxes, is to impose sanctions imposing additional taxes much higher than the case of a person liable for tax payment in order to induce the person liable for tax payment to faithfully report the tax base. In addition, Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes, which examples the case where a person can be seen as an "unfair method", provides that the purpose of evasion of national taxes, etc. is necessary in order to fall under "unfair method" as stipulated in Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes, and thus, it is difficult to determine that a return of tax base is unlawful or unlawful 20.

In this case, if the list of this case is prepared genuinely, it can be deemed that the re- border team prepared a false list to be recorded in the register of shareholders. If the list of this case was prepared falsely, it can be deemed that the document was prepared in order to be recorded in the register of shareholders. One of the two is that the document is not false, and the KimCC, the president of ○○○○ Development affiliated company, would be more well known than anyone who would be liable for the gift tax in case of donation of shares to the plaintiffs as a corporate head of the company. Nevertheless, the KimCC prepared the list of this case different from the shareholders of the re- border team within ○○○○○ Development, and kept a confidential list. From the opening point of the list of the plaintiffs in this case, after the expiration of the exclusion period of gift tax imposition to the tax authorities, it cannot be deemed that there was a reason other than the plaintiffs' comprehensive delegation by the plaintiffs.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and it is so decided as per Disposition.