Seoul Administrative Court-2014-Gu Partnership-67024 ( October 07, 2015)

The entry of the change in the title of the shares of this case shall not be stolen.

In light of relevant facts, it cannot be deemed that the transfer of title to the shares of the instant company was made against the intent of the Plaintiffs.

Article 45(2) of the former Inheritance Tax and Gift Tax Act

2015Nu6914 Demanding revocation of the imposition of gift tax

1. AA;

00 Gu 00 00, 000 Dong 000

2. BB

00 Gu 000, 000 Dong 0000

3. CCC;

00 Si 00 Gu 00 000, 000 Dong 000

4.D;

00 Si 00 00 Eup 00 0000 00

Plaintiffs (LLC) 00

Attorney 000

1. Aa director of the tax office;

2. B. Director of the Tax Office:

3. C. Head of c.

4. D Director of the Tax Office.

Defendants Litigation Performers 000

Seoul Administrative Court Decision 2014Guhap67024 decided October 7, 2015

May 17, 2016

June 14, 2016

1. In the judgment of the court of first instance, the part of the defendant Aa Tax Office, B Tax Office, and D Tax Office shall be revoked.

2. Plaintiff AA’s claim against Defendant AAA director, Plaintiff BB’s claim against Defendant DB director, and Plaintiff CCC’s claim against Defendant B director is dismissed.

3. The appeal filed against the defendant CC director of the plaintiff DD against the defendant CC director is dismissed.

4. The plaintiffs AA, BB, CCC and the total costs of the lawsuit between the defendant AA and the director of the AAAA, the director of the DD Tax Office, and the director of the DB Tax Office are borne by the above plaintiffs, and the costs of the appeal between the plaintiff DD and the director of the D D Tax Office are borne by the

1. Purport of claim

The gift tax of 16,761,230 won (including additional taxes), gift tax of 2006, gift tax of 2006, gift tax of 13,743,338 won (including additional taxes), gift tax of 2009, gift tax of 486,574,742 (including additional taxes), gift tax of 2009, gift tax of 357,882,440 won (including additional taxes) and gift tax of 2010, gift tax of 207,882,440 won (including additional taxes) granted by the director of the tax office against Plaintiff A on September 6, 2013, which belongs to Plaintiff BB by the director of the tax office of defendant D to the head of the tax office of 206.

12,748,840 won (including additional taxes), each disposition of the gift tax of 387,794,670 won (including additional taxes), the gift tax of 2009, the gift tax of 2009, the gift tax of 211,109,980 won (including additional taxes) imposed on the Plaintiff DD on February 4, 2013 by the head of the CC Tax Office, and the head of Defendant BB Tax Office imposed the gift tax of 16,05,340 won (including additional taxes) on the Plaintiff CCC on February 4, 2013.

2. Purport of appeal

A. Plaintiff DD

Of the judgment of the court of first instance, the part on Plaintiff DD is revoked. Each disposition of imposition of KRW 387,794,670 (including additional tax) of the gift tax on February 4, 2013 that was made by the head of the Cc Tax Office against Plaintiff DD on February 4, 2013, and KRW 211,109,980 (including additional tax) of the gift tax on February 209.

(b) Defendant Aaa Tax Director, BB Tax Director, and D Tax Director.

The same shall apply to paragraphs 1 and 2.

1. Quotation of judgment of the first instance;

This court's explanation about the background of the disposition, the plaintiffs' assertion, and the reasons for the relevant law are the same as the corresponding part of the judgment of the court of first instance, and thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Determination

A. Determination as to whether title trust was made regardless of the plaintiffs' intent

1) Legal principles

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 by agreement or communication with the nominal owner with respect to property that requires the transfer or exercise of the right thereto. As such, where the tax authority unilaterally makes a registration, etc. in the name of the nominal owner, regardless of the intent of the nominal owner, it may not apply. In such cases, it is sufficient to prove that the tax authority unilaterally makes a registration, etc. in the name of the nominal owner, and where it proves that the registration, etc. of the nominal owner was made in the unilateral act regardless of the intent of the nominal owner, the nominal owner who claims the registration, etc. of the nominal owner must be the nominal owner (see Supreme Court Decision 2007Du15780, Feb. 14, 2008). Unless there are any special circumstances, the facts acknowledged in the relevant criminal case decisions may be rejected if it is difficult to find that a specific document of confirmation was prepared by the tax authority or a specific document confirming to the actual owner.

2) Determination

A) In full view of the facts of Gap evidence 5, Gap evidence 1 to 8, Gap evidence 1 to 11, Eul evidence 19 through 27, Eul evidence 17 and 18, and the purport of the whole testimony of the witness F, Eul filed a complaint against Eul 0 around July 11, 2012 with 00,000 and 200, Eul 200 to 100 to 200 to 10 to 10 to 20 to 30 to 30 to 30 to 30 to 60 to 30 to 30 to 30 to 40 to 10 to 30 to 50 to 50 to 50 to 60 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 50 to 1 to 50 to .

B) However, in light of the following circumstances, it is difficult to conclude that: (a) the above facts of recognition, in light of the evidence Nos. 5 through 8, 12, 35 through 37 (including branch numbers when there are branch numbers; hereinafter the same shall apply); (b) the evidence Nos. 5 through 18; (c) some of the evidence Nos. 19 through 27; and (d) the testimony of FF witness of the first instance trial, part of the evidence No. 19 through 27; and (c) the testimony of the company FF of the first instance trial, it is difficult to conclude that: (a) the preparation of a stock transfer contract for the instant company’s stock transfer and takeover; and (b) the transfer of shares was made as a unilateral act of EE regardless of the intent of the plaintiffs who are the nominal owner of the shares; and (c) rather, it is reasonable to deem that EE was a transfer of shares by agreement or communication with the plaintiffs, even if the transfer of shares was unilaterally made at the time of this case, it did not raise thereafter.

(1) From January 30, 2012 to March 14, 2012, a regional tax office 00 has conducted a tax investigation of stock change with respect to the instant company. EE was present at a regional tax office on February 15, 2012, and was changed in the name of Plaintiff AA with respect to the transfer of shares on December 31, 2005, and it was not a donation to the Plaintiff AA and BB with respect to the transfer of shares on May 11, 2006. It was also necessary to change the Plaintiffs’ share ownership under the name of “A” or “A” to make a statement to the effect that it would be necessary for the shareholders’ general meeting for convenience of the management of the company, but it was also a change in the name of “A” under the name of Plaintiff A and B B B’s own shares. It was also a change in the title of “A” to the effect that it was a person who transferred the shares under the name of Plaintiff DD’s business.

(2) On January 31, 2012, Plaintiff DD submitted all documents to the effect that the acquisition of 12,400 shares of the instant company from EE in the regional tax office around June 1, 2009 was not actual acquisition transaction but merely nominal shareholders. Although EE and stock acquisition were not written, it was necessary to hold shares when it is registered as representative director, it was the representative director, and it was lent only in name with the consent of the registration as shareholders on the register of shareholders of the instant company. 00 was aware that it was 10% of the shares of the instant company, and that it was 10% of the shares of the instant company, and that it was 10% of the shares of the instant company and that it was 200% of the shares of the instant company's shares transfer to EE. 20% of the shares transfer of 209. 1. 20% of the shares of the instant company.

(3) The 000 and III present at a regional tax office 00 and stated to the effect that they may recognize the title trust of the instant company’s shares of the JJ, but this is a statement made on March 8, 2012 and March 9, 2012 at the time when the tax investigation was almost completed, and thus there is a possibility to distort their interests. In addition, the III stated that the said investigation was made with the investigator of the National Tax Service prior to the investigation, while communicating with the investigator of the National Tax Service.

(4) The EE made the above statements in the process of examining changes in stocks of the instant company by the regional tax office 000, and even if there is a possibility of collecting large amount of taxes according to the results of the investigation, it seems that the possibility of making a false statement causing tax liability is not high. The gift tax of KRW 5,471,244,420 (excluding part III), including the part revoked by the Tax Tribunal, was imposed on the Plaintiffs and the trustee in relation to the title trust of the instant company’s stocks, and the EE is a joint taxpayer of the gift tax imposed on the instant company. It is difficult to view that the EE reversed the above statement in the criminal procedure, and it is difficult to view that it is not reliable in the statement in the regional tax office 00.

(5) Although the supplementary investigation was not conducted by Plaintiff AA, BB, and CCC, such as hearing statements related to the instant stock acquisition, the statement to the effect that a certain property was ordinarily nominal trust to another person is not a statement prior to the liability of the said other person, but a statement to the effect that the title holder was responsible for it, and thus, it is difficult to view that the additional investigation was not conducted on the title holder as a ground for suspecting the credibility of the statement made during the process of the EE’s stock acquisition.

(6) As of April 16, 2012, Plaintiff DD prepared a written confirmation to the effect that “IE was unable to hear the reference from the instant company regarding the acquisition of shares,” and that “Plaintiff BB and CCC was aware of the transfer of shares from the instant company from the National Tax Service,” and that “IA became aware of the transfer of shares from the instant company by April 17, 2012,” and that “IA became aware of shares first in the National Tax Service’s investigation other than the shares received by the time prior to the date of entry into the instant company.” In light of the aforementioned changes in the tax investigation process of the pertinent regional tax office, it seems that Plaintiff BB and other nominal owners may have been aware that IE was unilaterally trusted by the police or other complainants, but it is difficult to find that Plaintiff BA’s statements were distorted by the National Tax Service’s statements made in the name of the Plaintiff 208B during the instant investigation process, and that there was a high possibility of 30GB’s own interests in the instant investigation process.

(7) Plaintiff AA, 000, 000, and III stated that they do not want to be punished by those who forged a share transfer contract or who do not want to be punished without a gift tax due to an investigation conducted by the police. In light of the above amount of gift tax, the complainants, including Plaintiff AA, are highly likely to file a complaint for EE in order to avoid the burden of gift tax, and thus, the authenticity of the complaint is also doubtful.

(8) As of April 26, 2012, Plaintiff AA had been aware of the fact that the NE Chairperson, who is his father, transferred the shares to the former at the time of entry. At the time, Plaintiff AA prepared a written confirmation that the shares were part of the shares. At the time, Plaintiff AA had been aware that his father had been appointed to the company at the time of her contribution to the company. Plaintiff AA, who had been on the early 2009 early 200, went to 00 to 100 to whom Plaintiff AA had been on the face of her early her early 200, did not know of the specific contents, but was informed of the result of the tax investigation at the regional tax office around March 2012, and that the transfer of the shares was known. The Plaintiff AA’s assertion to the purport that it was not known that it was the transfer of the shares of this case.

(9) As seen earlier, Plaintiff AA and BB were children of the EE, Plaintiff CCC was a co-car of the EE, and the FF that performed the business of changing the ownership of the instant company from 2009 was a co-car of the EE. The Plaintiffs joined the instant company and worked as a director, representative director, etc., and Plaintiff AA had been employed in the construction design business, which is similar to the instant company’s business before entering the instant company, and Plaintiff BB had been employed in the transfer of urban construction. In light of the above Plaintiffs’ experience and the status within the instant company, the Plaintiffs appears to have been in a position to know the company’s management process, etc.

(10) The Plaintiff AA and BB received the benefits from the instant company from around 1993 (the Plaintiff A and the Plaintiff BB were 25 years old, and the Plaintiff BB were 23 years old) prior to the entry into the instant company. In light of the above, Plaintiff AA and BB knew that the EE was used for the instant company’s business.

(11) Although there is no need to file a separate global income tax return because the earned income is withheld, Plaintiff AA, BB, and CCC has also filed a global income tax return on the dividend income in 2007 that was distributed from the instant company. The Plaintiff CCC paid an additional notice after being served with the notice of global income tax under the amount of global income tax, it seems that Plaintiff CCC could have clearly known that separate income was generated in addition to the details already reported.

(12) The Plaintiff AA’s share transfer agreement of August 21, 2009, the transferee of the instant company; the Plaintiff AA’s share transfer agreement of November 1, 2008, the transferor; and the share transfer agreement of June 1, 2009, the Plaintiff AA’s share transfer agreement of June 1, 2009 are affixed with the seal imprint of the Plaintiff AA. It is difficult to understand that Plaintiff AA continued to leave the seal imprint to the instant company up to the seal imprint, and that Plaintiff AA had a seal affixed from time to time to time on documents he/she is aware of; and as such, Plaintiff AA was also resigned from the instant company as of July 1, 2009 and completed the registration of resignation on the same day, it is reasonable to deem that Plaintiff AA’s share transfer agreement of August 21, 2009, the transferee, was affixed with the Plaintiff’s intent.

(13) Plaintiff AA asserts to the effect that it would not be aware of any change in the name of shares since it would not be better between the EE and that subsequent change in the name of shares was made. However, it is difficult to accept the Plaintiff’s assertion that the EA unilaterally entrusted the ownership of shares to Plaintiff AA who did not cooperate with the EE. In addition, Plaintiff AA worked for the instant company for the year 201 and offered a seal impression on the contract of August 21, 2009 as above, and it is reasonable to deem that Plaintiff AA was aware of the agreement of Plaintiff AA on August 21, 2009 and April 1, 2010.

(14) The share acquisition agreement of this case dated 1, 2009 and August 21, 2009, when Plaintiff DD was the transferee, the same seal of Plaintiff DD was affixed. The FF appeared in the first instance court as a witness and stated that the above seal is known to be the seal imprint of DD.

(15) In the relevant criminal case, the data on the payment relationship of Plaintiff AA and BB not submitted in the relevant criminal case, the use of Plaintiff AA’s seal impression in the stock acquisition agreement, the global income tax return on dividend income, and the delivery of the global income tax additional notice to Plaintiff CCC was submitted in this case. In light of the aforementioned relevant persons’ statements, the transfer of ownership to the shares of the instant company did not appear to have been made regardless of Plaintiff AA’s intent. As such, it is difficult to determine the facts of the other criminal judgment (as seen earlier, if the Plaintiffs were to be deemed to have made a title trust effective due to their lack of objection upon knowing the transfer of ownership, the fact-finding of the instant judgment is not inconsistent with the criminal judgment).

B. Whether the acquisition price of the instant shares and the transfer of ownership had an objective of tax avoidance

1) Legal principles

The legislative purport 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, if the title trust was recognized to have been conducted for any reason other than the purpose of tax avoidance, and only a minor tax reduction incidental to the said title trust arises, it cannot be readily concluded that there was such purpose of tax avoidance. However, in light of the legislative purport as above, only if the purpose of the title trust is not included in the purpose of tax avoidance, it is impossible to determine that there was an intention of tax avoidance by applying the proviso of the said provision, and thus, it cannot be said that there was no other purpose of tax avoidance. Furthermore, the burden of proving that there was no intention of tax avoidance in this case is a nominal person who asserts it (see, e.g., Supreme Court Decision 201Du9779, Oct. 17, 2013). 208).

2) Determination

In light of the following circumstances, it is not sufficient to recognize that the statement of Gap evidence 29 through 34 alone did not have any purpose of tax avoidance to EE, and there is no other evidence to acknowledge it. Therefore, the plaintiffs' allegation in this part is without merit.

A) The Plaintiffs asserted that EE had been carried out without any special reasons with a vague belief that it would be favorable to the management of the company as the shares would be distributed in the case of acquisition of shares by December 31, 2005 and May 11, 2006, and that it did not disclose an obvious purpose that is not related to tax avoidance.

B) The Plaintiffs asserted that the EE acquired shares of July 1, 2009 was seriously damaged by the investment failure of 0000, and that the name was transferred by fear that it would be subject to compulsory execution, which is the head of the company and the representative director, and that it would be an obvious purpose of tax avoidance. However, the Plaintiffs should prove that there was no tax to be avoided at the time of title trust or in the future.

C) The Plaintiffs asserted to the effect that each acquisition of shares as of August 21, 2009 and April 1, 2010 by their respective shares was merely an acquisition of shares due to the retirement of their executives and employees, but not an object of tax avoidance. However, the mere alteration of the title trustee cannot be deemed an obvious purpose that is irrelevant to tax avoidance.

D) At the time of the acquisition of the instant shares, capital gains tax, etc. was paid on the basis of KRW 10,000 per share, but as of the end of 2010, the appraised value per share of the instant case as of the end of 2010 is KRW 193,319. Plaintiff AA and BB could be able to avoid gift tax or inheritance tax, etc. while holding shares in their own name, if EE did not change its name as an executive or employee on the friendly basis of changes in business environment around 2009.

E) When integrating the aforementioned evidence, evidence Nos. 33, and evidence Nos. 19 through 23, EE integrated the purport of the entire pleadings, the actual right holder of 62,000 shares of the instant company or an officer or employee of the instant company through the acquisition of shares on July 1, 2009, and the cumulative earned surplus of the instant company until the business year 2010 recognized that the accumulated amount of earned surplus of the instant company became approximately KRW 4.5 billion, and thus, EE became a situation in which the application of the progressive tax rate on global income was avoided by ensuring that dividend income is not included in global income.

F) EE, through title trust, was established on July 1, 2009 (Plaintiff CCC 20%, FF 20%), 35% (Plaintiff AA 15%, FF 20%) on August 21, 2009 (Plaintiff AA 15%, FF 20%) under Article 39(1)2 and (2) of the former Framework Act on National Taxes (amended by Presidential Decree No. 9911, Jan. 1, 2010; hereinafter the same) with a result that does not fall under an oligopolistic shareholder under Article 20 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010), and thereby, the company was 100 million won in arrears at the time of the transfer of oligopolistic shareholder’s shares and became 201 billion won in arrears pursuant to the proviso to Article 39(1)2 and (2) of the former Framework Act on National Taxes.

C. Sub-decision

Therefore, the instant disposition that deemed the title trust deemed to be a donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is lawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed for the reason of its reason. Among the judgment of the court of first instance, the parts of the defendant AA, BB, and D Director of the District Tax Office are unfair for the reasons of its conclusion, and thus, they are revoked, and the claims of plaintiffs AA, BB, and CCC are dismissed, and the plaintiff D from the judgment of the court of first instance is justified, and therefore, the appeal of the plaintiff DD from the judgment of the court of first instance