Suwon District Court 2012Guhap7289 ( October 15, 2013)

early 2012 Middle 0735 (2012.05.09)

Contribution to shares, not the shares held in title trust;

(1) The disposition imposing gift tax on the increase in the value of stocks is legitimate, on the ground that the stocks are deemed to have been donated by the presumption of the stock price increase according to the KOSDAQ and the fact that the low-evaluation stocks are donated to the spouse in advance, although they are alleged to be the stocks under title trust without any tax avoidance purpose.

Article 41-3 of the Inheritance Tax and Gift Tax Act

2013Nu10634 Revocation of the imposition of gift tax

Gangwon A

Head of Suwon Tax Office

Suwon District Court Decision 2012Guhap7289 Decided February 15, 2013

December 24, 2013

February 7, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

The imposition of gift tax OOO on July 8, 201 by the Defendant against the Plaintiff is revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as stated in Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, since the reasoning for the court's decision is the same as the stated in the judgment of the court of first instance, except for the part as stated in paragraph (2) below

2. Parts in height:

In addition, the 3th sentence of the first instance court, the 11th to 17th sentence are as follows.

The burden of proof as to the existence of a taxation requirement shall be established against the tax authority, but if the facts alleged to have been presumed to have been subject to the application of the empirical rule in light of the empirical rule (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990). The fact of ownership of shares should be proved by the tax authority based on the data, such as the list of shareholders or the statement of the status of movement of shares. However, even in cases where a single shareholder appears to be a single shareholder in light of the above data, the actual owner cannot be deemed to constitute a shareholder only in such name, but it should be proved by the nominal owner who asserts that he/she is not a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004).

In this case, based on the above legal principles of conduct 17 through No. 18 of the first instance judgment, the health room is as follows, as to whether the Plaintiff received title trust from ParkB, her husband, without the purpose of tax avoidance.

First, the facts that ParkB owned the shares of this case until December 18, 2009, and the facts that the Plaintiff was holding the shares of this case as of December 31, 2009 in the statement on the change of stocks, etc. in the business year of 2009 of the △△ Company, which were stated as being a gift of the shares of this case on December 31, 2009, are neither dispute between the parties concerned nor acknowledged by the statement in subparagraph 6-3, which is presumed to have been presumed to have been the fact that ParkB donated the shares of this case to the Plaintiff in light of the empirical rule.

Therefore, the Plaintiff has the burden of proving other circumstances that are not subject to the empirical rule. As alleged by the Plaintiff, whether the Plaintiff received title trust without the purpose of tax avoidance, not the Plaintiff’s donation of the instant shares from ParkB;

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.