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, only the Plaintiff A cannot be deemed to have borne the entire purchase price of the instant shares in an internal relationship, etc., it is difficult to deem that the Plaintiff BB, BB, and DD did not pay the purchase price for the instant shares.

Article 27 (Calculation of Necessary Expenses)

2013Guhap58672 Revocation of Disposition of Imposition of Gift Tax

AA and 3

BB Head of the Tax Office and 2

December 6, 2013

January 17, 2014

1. On October 1, 2012, the head of Defendant BB Tax Office revoked the imposition of each gift tax on Plaintiff HaE and KimF, the imposition of each of the OOO on October 5, 2012, the imposition of each gift tax on Plaintiff KimGG and KimF, and the imposition of each of the OOO on Defendant DD head of the tax office on October 2, 2012.

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

Cheong-gu Office

The decision is as follows (the plaintiff is as follows: (a) the head of the tax office on October 9, 2012 held that "the head of the tax office of defendant BB shall revoke the imposition of the gift tax on the plaintiff E and KimF on October 9, 2012; (b) the imposition of the OOO on the plaintiff KimF on October 10, 2012; (c) the imposition of the gift tax on the plaintiff KimG on October 11, 2012; (d) the imposition of the gift tax on the plaintiff KimG; (e) the imposition of the gift tax on the plaintiff Kim H on October 2, 2012; (e) the imposition of the gift tax on the plaintiff KimF on the plaintiff KimF; and (e) the imposition of the OOO on the gift tax on the plaintiff E and KimF on the grounds that the defendant alleged that the payment notice on the plaintiff E and KimF was lost; (e) the written decision in each of the above written complaint appears to be written.

1. Details of the disposition;

A. Plaintiff Kim GG is an employee of Plaintiff KimF’s East, Plaintiff JeongE is a representative director of Plaintiff KimF, and Plaintiff KimF’s employee of Plaintiff IIII (hereinafter “IIII”).

나. 원고 정EE, 김GG, 김HH, 김FF 및 김JJ, 김KK, 김LL은 2009. 8. 27. 길MM, 길NN, 임OO, 박PP, 이QQ와 사이에 아래 표와 같이 주식회사 RRRR(이하 'RRRR'라 한다) 주식 합계 OOO주(총 발행주식 OOO주의 OO%, 그 중 원고 정EE, 김GG, 김HH이 취득한 합계 OOO주를 '이 사건 제1주식'이라 한다)를 OOO원에 양수하기로 하는 주식매매 및 경영권양수도계약(이하 '이 사건 계약'이라 한다)을 체결하였다.

C. On the other hand, on August 27, 2009, Plaintiff KimF entered into a contract with the Plaintiff Kim FF to acquire the shares of the remainder of the RR OO (hereinafter “the shares of this case”) from SS and HT, and to acquire the shares of the remainder of the OOO (hereinafter “the shares of this case”) in the OF.

D. As a result of the investigation into shareholders change of the RR, the director of the Daegu Regional Tax Office: (a) judged that the Plaintiff KimF acquired all of the instant shares of the RR, and thus, (b) determined that the OOO owner was nominal in title to Plaintiff EE, KimG, Kim H and KimJ, and KimU; and (c) notified the Defendants of taxation data to levy gift tax for 2009. Accordingly, the Defendants imposed gift tax on Plaintiff E, KimGG, and Kim H pursuant to Article 45(1)1 of the Inheritance Tax and Gift Tax Act (hereinafter “the Inheritance Tax and Gift Tax Act”) on the ground that the Plaintiff KimF transferred the instant shares to Plaintiff E, KimF, KimG, and Kim H for the purpose of tax avoidance, and notified Plaintiff KimF of the payment of the same amount of gift tax pursuant to Article 4(5) of the Act.

E. The Plaintiffs appealed and filed each tax appeal, and Plaintiff EE and KimGG were dismissed on June 10, 2013, and Plaintiff KimF on June 12, 2013 by the Tax Tribunal.

Facts that there is no dispute over recognition, described in Gap evidence 1 and 2 (including both household numbers; hereinafter the same shall apply), the purport of the whole pleadings.

2. The plaintiffs' assertion

A. Plaintiff EE, KimG, and Kim H received the shares of RR from Plaintiff KimF in return for contribution to and acquisition of RR from Plaintiff KimF, and is not nominal trust from Plaintiff KimF, but rather owned by the said Plaintiffs.

B. Even in a case where a family title trust is recognized, the purpose of tax avoidance cannot be recognized, and thus, the imposition of each gift tax of this case must be revoked.

C. The Defendants calculated the value of donated property by deeming the acquisition price of the RR shares as KRW 00 million. However, since the acquisition price of the RR shares is KRW 00 million, it is unlawful to calculate the value of the Defendants’ donated property.

3. Relevant statutes;

Attached Form is as shown in the attached Form.

4. Determination

(a) Facts of recognition;

1) The Plaintiffs raised funds of KRW 00 million from VV and VV corporate restructuring 2 (hereinafter “VV”) to cover the acquisition fund of the instant contract.

2) On September 2, 2009, Plaintiff KimF decided to sell the instant shares to VV for KRW 31,200,000, but entered into a contract to purchase the said shares from VV for KRW O0,000. On November 30, 2009, Plaintiff KimF concluded the contract to purchase the said shares again from Plaintiff Kim FF, KimG, Kim H and KimJ to secure the said re-purchase. On September 3, 2009, Plaintiff Kim FF entered into a contract to purchase the instant shares with V for the instant shares, ① OO limit on collateral, ② The scope of secured obligation: Plaintiff KimF and neighboring pledgee: (i) the re-sale contract to be paid by KimF to the neighboring pledgee; (ii) the compensation for damages incurred by the Plaintiff KimV’s execution of the right to use KimV’s right as a pledge; and (iii) the compensation for the said shortage of expenses incurred by Plaintiff KimV due to the execution of the pledge and its debt repayment.

3)V transferred the acquired OO shares among the 2 shares of this case to III on December 16, 2009, and VV corporate restructuring association holds the same as the OO shares acquired (a total sum of the OO shares acquired).

4) Of the aggregate of the RR acquisition cost, the O00 million won was paid as a check by Plaintiff KimF and his spouse KimLL, and the O00 billion won was paid as the funds raised from V, and the OF was paid as a per unit number sheet issued by III I, which is the representative director of Plaintiff KimF. On September 3, 2009, Plaintiff KimF was appointed as the intra-company director and the representative director of the RR respectively.

5) On the other hand, Plaintiff KimG offered OOO OO OO No. OOOOOOO under its own possession to pay the purchase price of the instant contract, and Plaintiff EO will pay the Plaintiff KimF for the share acquisition fund each OO of April 1, 2009 and June 29, 2009. On June 19, 2009, Plaintiff KimG paid the Plaintiff KimF a total sum of OOF by giving up the exercise of the claim of OOOF on July 3, 2009, OOOOO No. OOOO No. OOOOOO No. 1030, Jan. 8, 2010, OOO No. 2010, Oct. 17, 2010; and Plaintiff Kim H paid the total amount of KRW 300,000,000 for each share acquisition fund.

6) On December 2009, the KimJ, which introduced the acceptance of the RR, filed a criminal complaint against the plaintiff KimF against the crime of breach of trust, and filed an application for a provisional injunction claiming the suspension of the performance of duties as the representative director of the RR, etc. On the other hand, the RR opened an extraordinary general meeting of shareholders on December 28, 2009 and decided to dismiss the KimJ from the internal director. On December 23, 2010, the plaintiff KimF and KimJ agreed to transfer the shares held by the KimJ and its spouse Kim KK to the plaintiff KimF in KRW OO only on December 23, 2010. The main contents of the instant agreement are as follows.

Article 1 Payment of Agreed Amount

1) Plaintiff Kim FF shall pay KRW 00,000 to Kim KK and KimJ on the condition that the Kim J shall not exceed the following two paragraphs:

Article 2:Duties of KimK and Kim J

1) After the conclusion of this agreement with respect to Plaintiff KimF, RR and its shareholders, officers, and employees, and VV, Kim K and Kim J did not file any civil lawsuit or criminal complaint or complaint, or do not engage in any act that may cause harm to any of the relevant agencies, such as filing complaints or complaints, filing objections, or providing relevant information to any of the individuals or companies listed above, or providing any third party with relevant information.

Article 3 Transfer of Shares

1) The entire shares of RR under the name of Kim KK and KimJ shall be transferred in the name of the plaintiff KimFF, and Kim KK and KimJ shall not make any claim or objection against the shares of the company in the future.

The evidence adopted before the basis of recognition, Gap evidence Nos. 3 through 7, Gap evidence No. 12, 15, 27, 28, and Eul evidence Nos. 1 to 10

B. Determination

1) Whether title trust exists

A) Article 45-2 of the Act provides that where the actual owner of a property (excluding land and buildings) which requires the transfer of rights or the registration thereof is different from the nominal owner, the title holder shall be deemed to have donated the value of the property concerned to the actual owner on the date when the property is registered, etc. as the title holder. The title trust agreement is not necessarily established under an explicit contract between the truster and the trustee, but may be established by implied agreement. Whether there was an implied agreement on the title trust should be determined reasonably 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 of the trustee’s custody of the property, the transaction details and manner between the truster and the trustee, etc. In imposing gift tax on the basis of the provision on deemed donation of the property under title trust, the burden of proving whether the title trust exists is the tax authority, the subject of

B) First, according to Gap evidence 6-1, 2, Eul evidence 7, and Eul evidence 13-1, and Eul evidence 13-2, prior to the conclusion of the contract of this case, KimF prepared a management transfer and purchase agreement (Evidence 7) with the purport that plaintiff KimF would purchase all of the shares of this case in its name before the conclusion of the contract of this case. The contract prepared by the plaintiffs and Kim JJ, Kim JL, KimL, KimK to V at the time of establishing a pledge right on the shares of this case, "GGF (IIII representative director of the corporation) entered into a contract with the plaintiff Kim F's family and directors of this case, it is difficult to recognize the possibility that I would purchase all of the shares of this case to purchase the shares of this case under the name of the plaintiff Kim FF's own trust and arrange to purchase the shares of this case to the plaintiff H from the debtor of this case.

C) However, in light of the following circumstances that are acknowledged as above and acknowledged by comprehensively taking account of the overall purport of the pleadings as a whole in the evidence as well as the evidence mentioned in the above facts and the statements mentioned in Gap evidence Nos. 8 through 10, 13, 22, 23, 25, 26, 29, 30, and Eul evidence No. 21, it is insufficient to readily conclude that the plaintiff KimF held the title trust of the shares No. 1 of this case with the plaintiff HaE, KimG, and Kim H, and there is no other evidence to acknowledge otherwise.

(1) Of the KRW O00,000, which was paid to RoM, etc. as the acquisition price of the RoRR shares, the OF paid out of VV, and paid out of the KRW O00,000,000,000 as the per share table for the issuance of IIII. Since the actual amount borne by Plaintiff KimF and his spouse KimL falls short of the KRW O00,000,000, Plaintiff KimF cannot be deemed to have paid the total purchase price of the shares of this case. On the other hand, in relation to VV’s O00,000, Plaintiff EE, KimGG, and Kim H provided a pledge to secure the payment of the purchase price of the entire 1 shares of this case, as well as joint and several surety obligations. If Plaintiff JeongE, Kim GG, and H is not the actual owner of the RoR shares, it is an example that the obligation of joint and several surety, other than the obligation of offering the acquisition price, was to be borne for the purpose of the acquisition price.

(2) Under the pretext of the acquisition price of the RR’s stocks, Plaintiff EE paid OO, Plaintiff Kim H, and Plaintiff Kim H paid OO, and Plaintiff Kim H endorsed endorsed on the per unit of par value KRW O00 million issued for the payment of acquisition funds. Plaintiff Kim GG provided real estate owned by the principal to the transferor in kind at the time of the conclusion of the instant contract.

(3) Plaintiff Kim GG and JeongE are employees working together with Plaintiff KimF in IIII for a long time, and Plaintiff Kim H H had been working in the field of corporate acquisition and merger. Plaintiff Kim GG, JeongE, and Kim H had been working in the field of corporate acquisition and merger. Plaintiff Kim GG, JeongE, and Kim H participated in the business of acquiring and managing the RR at the recommendation of Plaintiff KimF, without sufficient funds and human resources to acquire the RR, and thus, Plaintiff KimF could have allocated a certain share of the RR in return for offering knowledge and experience in the previous business after investing or suspending some of the money to Plaintiff Kim GG, JeongE, and Kim H.

(4) All Plaintiffs KimG, JeongE, and Kim HH were appointed as directors immediately after the acquisition of RR, and thereafter have participated in a resolution of the board of directors or the general meeting of shareholders.

(5) On December 23, 2010, KimJ exempted from the joint and several debt obligations of VV with respect to VV, and received KRW 00,000 from Plaintiff Kim F in return for the transfer of shares in the name of KimJ and Kim KK. However, considering the fact that the instant shares were provided as collateral security and that the KimJ received in return for the transfer of shares, it cannot be deemed that the actual value of the instant shares is high.

(6) The reasons why the contract of Plaintiff KimF’s sole name (No. 7) was made up at the time of the conclusion of the contract of this case appears to be the reason why: (a) in the case where Plaintiff KimF’s acquisition of the instant shares from Plaintiffs, Kim JJ, Kim KK, and KimL from 6 others, the parties were too many in a case where the Plaintiff KimF takes over the instant shares from the streetM, and the procedure was to take over the shares due to a single-day response relationship; and (b) Plaintiff KimF planned to distribute the instant shares again after the purchase of all of the instant shares; and (c) thereafter, the issue of double payment of securities transaction tax was pointed out, such as Plaintiff KimF, etc.’s double payment of securities transaction tax, and thus, it seems that the said contract was actually destroyed. Therefore, it is difficult to conclude that it constitutes a genuine contract or a single contract.

(7) In light of the fact that the Plaintiff KimF alone entered the instant shares in the extension line, such as the Plaintiff KimF’s contract (Evidence No. 7) and without revising it, or that such wording did not have any special meaning in the neighboring pledge contract, it is also sufficient to describe the process of acquiring the instant shares simply in the purport that it was possible to briefly describe the process of acquiring the instant shares. In addition, it may be possible for the Plaintiff KimF to claim that all of the instant shares were acquired by the Plaintiff KimF additionally in the process because it was necessary to simply state the facts in order to be subject to a disposition of prompt prohibition of payment on the per share sheet. Moreover, it is difficult to view that the DoM, the other party to the disposition of prohibition of payment and W, the Plaintiff KimF alone, as the party to the instant pledge contract, submitted a document confirming that the instant shares were not acquired by the Plaintiff KimF solely from the Plaintiff KimF. Although the fact that the shares under the name of J, etc., such as the title trust was confirmed, it is difficult to deem the content of the instant shares in the form of the J agreement.

D) Therefore, the instant disposition taken by the Defendants on the premise that Plaintiff KimF held a title trust of the RR’s shares to Plaintiff PE, KimGG, and Kim H should be revoked on an unlawful basis.

2) Whether the purpose of tax avoidance exists

A) The legislative purport of Article 45-2(1) of the Act is to recognize an exception to the substance over form principle in the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, if the title trust was recognized to have been conducted for reasons other than the purpose of tax avoidance, and it is merely a minor reduction of tax incidental to the title trust, it cannot be readily concluded that there was "the purpose of tax avoidance" in such title trust. However, if the purpose of tax avoidance is not included in the title trust purpose, it cannot be determined that there was a "the purpose of tax avoidance" in such title trust, by applying the proviso of the above provision, only if the purpose of tax avoidance is not included in the title trust purpose, and if it is deemed that there was an intention of tax avoidance, it cannot be said that there was no other purpose of tax avoidance. In such case, the burden of proving that there was no purpose of tax avoidance exists

B) In light of the above legal principles, even if the Plaintiff’s acquisition of the shares were to be deemed to have been disposed of in the name of the Plaintiff’s 1, the fact that it was difficult for the Plaintiff to acquire the Plaintiff’s 2 to take over the shares in the name of the Plaintiff, and that the Plaintiff’s acquisition tax was insufficient to pay the acquisition price of the 1, and that the Plaintiff’s acquisition price of the 1,000,000 won was to be used as the acquisition fund of the 1,000,000 won of the 1,000 won of the 3,000,000 won of the 3,000,000 won of the 1,000,000 won of the 3,000,000 won of the 3,000,000 won of the 1,000 won of the 3,000,000 won of the 1,000,000 won of the 1,07.

5. Conclusion

The plaintiffs' claims shall be accepted with due reason, and it is so decided as per Disposition.