early 2011west 1763 ( December 13, 2011)

It is insufficient to recognize that the title trust constitutes a title trust in light of occupation and income, and that there was no tax avoidance purpose.

It is insufficient to recognize that there was no economic activity since the current state of being staying in the public interest service or in Japan immediately after the graduation of high school had not been engaged in any economic activity, and since the property held at the time was merely the land and shares donated, it would be viewed as title trust and there was no tax avoidance

2012Guhap8519 Revocation of Disposition of Imposition of Gift Tax

lightAA

The Director of Gangnam District Office

December 14, 2012

January 18, 2013

1. The plaintiff's claim is dismissed.

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

Each imposition of 00 won for gift tax for 2004 and 000 won for gift tax for 2005, each imposition of 2000 won for the Defendant against the Plaintiff, and the imposition of 00 won for gift tax for 2004 and additional tax for 2005 for gift tax for 2004 on December 3, 2012 shall be revoked.

1. Details of the disposition;

A. From July 16, 2004 to July 26, 2004, the Plaintiff acquired shares of 4,760,200 common shares of BBB, a corporation registered on KOSDAQ (hereinafter referred to as “BB”) in the number of 00 won from July 16, 2004 to July 26, 2004, and of 6,000 common shares and 200 shares of BBB, a corporation registered on KOSDAQ (hereinafter referred to as “BB”), and on October 18, 2005, due to capital increase with 00 won, BB’s common shares and 6,000, and 00 shares (hereinafter referred to as “second shares”).

B. The Board of Audit and Inspection, after conducting a specific audit of capital transactions, notified the Defendant of the taxation data that the first and second shares of this case were confirmed to have been trusted to the Plaintiff by GCC, its father, and that they were in title trust to the Plaintiff. Accordingly, the Defendant imposed the gift tax for 200 years on each of the above shares under Article 45-2(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007; hereinafter the same shall apply) and the gift tax for 200 years on each of the above shares, and the gift tax for 200 years on February 1, 201, imposed the penalty tax for 200,000 won on each of the above shares upon the Plaintiff.

The Board dismissed the Plaintiff’s claim on December 13, 2011.

[Grounds for Recognition] The non-speed facts, Gap evidence 1, 2, and 45, and Eul evidence 1 and 13 (including each number)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant shares were acquired using KRW 000 out of the total amount of KRW 000 and the total amount of KRW 000 of the purchase price of shares of DD Industries Co., Ltd. (hereinafter “DDD Industries”) owned by the Plaintiff and KRW 000,000, and the instant shares were clearly verified to have been acquired using KRW 000 borrowed from HHHHH Investment, and the instant disposition based on only the relevant judgment was unlawful, disregarding such source of payment.

(2) On the other hand, considering the fact that the actual owners of the first and second stocks of this case appear to be the lightCC, and the owner is the lightCC or the Plaintiff or the transfer income tax does not vary depending on whether they are the Plaintiff, and that there is no wage paid since the business year 200 with respect to the first and second stocks of this case, and there is no room to avoid global income tax; and that there is no room to avoid the secondary tax liability or deemed acquisition tax of oligopolistic shareholders because the Plaintiff’s stocks owned by BB are merely 12.34% since they are merely 12.34%, it cannot be deemed that the lightCC had the purpose of tax labelling in title trust with the Plaintiff, and thus, the disposition of this case on the premise that there was a tax avoidance purpose, is unlawful.

(b) Related statutes;

Paper in the Appendix

(c) Fact of recognition;

(1) The Plaintiff was employed as public interest service personnel in 2003 and 2004 after having graduated from a high school with 1982, and was staying in Japan as a student status until March 2009, and had not received income by specially engaging in economic activities until this time.

(2) From 197 to 199, GyeongCC worked in the securities industry such as II securities, JJ securities, and KK securities, and around 1998, ELL Co., Ltd. (hereinafter referred to as “LL”) was taken over at around 2004 and was in charge of representative director at around 200, and, at the time of the enforcement of BB, it was found that the DD industry, OOOO, and the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 3th anniversary of the 20th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3rd of the 3th anniversary of the 3th anniversary of the 3th anniversary of the 3th anniversary of the em.

(3) The lightCC made a statement to the effect that it acquired part of the shares necessary in the process of acquiring management rights of BB by means of internal purchase, etc. in the name of the Plaintiff in the course of tax investigation related to BB’s acquisition and investigation of the said criminal case, and of acquiring the management rights of BB’s funds.

(4) 원고가 경CCCC으로부터 취득자금 혹은 해당 재산 자체를 증여받고 증여세를 납부한 재산은， 강원 횡성군 갑천면 OO리 0000 임야 2，562㎡， 같은 리 0000 임 야 2，931㎡， 같은 면 OO리 000 임야 39，471㎡， 같은 리 000 임 야 29，950㎡， 같은 리 0000 임야 114，153㎡， 같은 군 청일면 OO리 0000 대지 493㎡ 등의 토지와 LLLLLL의 주식 등으로 모두 2001년부터 2003년 사이 증여가 이루어졌고，전체 증여재산의 가액은 0000원이다.

(5) In the Plaintiff’s name from December 2, 2003 to June 2004, the acquisition price was 547,574 shares of DD industry (acquisition price of 000,000), and the acquisition price was 000 won (total acquisition price of 000,000), each of the above shares was 00 won from MD Mutual Savings Banks in the Plaintiff’s name, and 00 won was O, O, O, O, O, o, o, o, o, o, o, o, o, o, and o, and o, and most of the above funds were 00 won and o, o, and o, o, and o, o, were able to stand joint and several sureties.

(6) On July 12, 2004, the purchase price of the pertinent shares was paid at KRW 000 (transfer marginal profit 000) and KRW 000 (transfer marginal profit 000) in total of the purchase price of the shares transferred in KRW 00 (transfer marginal profit) of the previous DD industry, and KRW 2 shares was paid.

(7) The summary of the relevant judgment, which served as the basis for the instant disposition, is summarized as follows.

Seoul High Court Decision 2006Na32851 Decided February 9, 2004 (hereinafter "Seoul High Court Decision 2006Da32779 decided June 17, 2005) decided that the above DD industry's shares constituted a major shareholder as provided in the above provision, and that the above DD industry's shares were transferred to the Plaintiff at the Seoul High Court Decision 2006Na32851 decided that the above DD industry's shares were transferred to the Plaintiff, and that the above DD industry's shares were transferred to the Plaintiff at the time of 206Na3279 decided that the above NCC's shares were transferred to the Plaintiff at the time of expiration of the title trust agreement, and that the above DCC's shares were transferred to the Plaintiff at the time of expiration of the title trust agreement (hereinafter "CC's shares transferred to the Plaintiff at the time of expiration of the title trust agreement"), and that the above NCC's shares were transferred to the Plaintiff at the time of expiration of the title trust agreement.

(C) Seoul High Court Decision 2008 High Court High Court Decision 2008 High Court Decision 680 (Criminal Procedure against Violation of the Civil Execution Act by the MinorCC)

In Suwon District Court Decision 2004Gahap19015, GCC held NCC shares in title trust to the Plaintiff, but submitted a false list due to the fact that the Plaintiff did not include the NCC’s ownership in the list of property, the judgment of conviction of a fine of KRW 000 was rendered, and the above judgment was dismissed and finally affirmed the appeal of the Chuncheon District Court 2009No424 by the Gyeongcheon District Court 2009No424.

(D) Seoul Central District Court Decision 2007 High Court Decision 4551 (criminal procedure against violation of the Securities and Exchange Act by the MinorCC)

GyeongCC, as a shareholder who has acquired at least 5% of the shares of BB, a KOSDAQ-registered corporation, in its own account, acquired the shares of BB from July 16, 2004 to July 23, 2004 under the Plaintiff’s name, and reported to the Financial Supervisory Commission and the Exchange a false report in the name of the Plaintiff other than its own name, thereby violating the obligation to report possession of shares under the Securities and Exchange Act, and the above decision became final and conclusive as it did not object to the MCC (the Defendant of the case in question).

[Ground of Recognition] The facts without dispute, Gap evidence of 3 to 40, and Eul evidence of 2 to 12 (including each available lot number), and the whole purport of the pleading

D. Determination

(1) The actual owner of the first and second shares in this case.

In light of the following circumstances, considering the facts as seen earlier, the facts acknowledged, and the overall purport of the pleadings, and it is reasonable to deem that the lightCC, as the actual owners of the first and second shares in this case, registered the Plaintiff with the first and second shares. Therefore, it is deemed that the lightCC, pursuant to the main sentence of Article 45-2(1) of the Inheritance Tax and Gift Tax Act, is deemed that it was donated to the Plaintiff. Therefore, the Plaintiff’s first argument is without merit.

(A) The purchase price of the instant shares 1 and 2 was paid from the purchase price of the Plaintiff’s DD industry and GG pharmaceutical shares in the name of the Plaintiff, and the purchase price of the said DD industry and GG pharmaceutical shares was paid from December 2, 2003 to June 2004 from the purchase price of the said DD industry and GG pharmaceutical shares was 00 won borrowed from the secondary financial right and 000 won borrowed from the individual creditors.

(B) However, it cannot be deemed that the Plaintiff was directly involved in a legal act necessary for financing loans and acquiring stocks, since the Plaintiff had been staying in the public interest service or studying in Japan immediately after the graduation of high school and had no economic activity experience, and the property at the time was merely limited to 000 won’s land and stocks donated by GyeongCC. Moreover, it is deemed that it was practically impossible for the Plaintiff to borrow and procure funds of KRW 000 with the Plaintiff’s property and credit.

(C) On the other hand, GyeongCC is a company that has been specialized in stock transactions and acquisition, merger, etc. of companies through them, and OO industry, OOO, LL, BB, etc., all of which are issuing companies acquired and disposed of in the name of the Plaintiff, were working for GyeongCC, or participated in its management rights (such dispute settlement, acquisition attempt, or acquisition), and GyeongCC acquired stocks of the above company for the purpose of securing management rights by using its process information, etc., and it is reasonable to view that GyeongCC directly borrowed funds necessary for acquiring stocks, all of which are loans, depending on its credit and transactional relationship.

(D) In a lawsuit claiming return of short-swing profits filed by DaD Industries against DoD Industries, the GyeongCC asserted that the Plaintiff, the nominal owner of the relevant shares, was not the actual owner of the relevant shares, and instead, it defended only that the Plaintiff does not fall under the major shareholder under the former Securities and Exchange Act on the premise that DoD Industries is the actual owner of the relevant shares, and even if Does have been convicted of the violation of the Securities and Exchange Act, it did not raise any objection thereto, and even in the criminal litigation on whether the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) was violated, it argued to the effect that the Plaintiff owned the said shares in the Plaintiff’s name when taking over

(E) In addition, in criminal proceedings, as to the violation of the Civil Execution Act and the submission of a false inventory by omitting the NCC’s stocks in subrogation of the Plaintiff in order to preserve the above claim for return of short-swing profits, it is determined that the pertinent DNA industry is an actual owner of the stocks acquired under the name of the Plaintiff.

(2) Whether the purpose of tax avoidance exists

(A) The legislative intent of Article 45-2 of the Inheritance Tax and Gift Tax Act is to effectively prevent the act of tax avoidance using the nominal deposit system and realize the tax justice. Therefore, the application of the proviso of the same Article is possible only if the purpose of title trust is not included in the purpose of tax avoidance, and in such a case, the burden of proving that there was no purpose of tax avoidance. Therefore, the nominal owner of the burden of proof can be proven by means of proving that there was no purpose of tax avoidance other than the purpose of tax avoidance. However, the nominal owner of the burden of proof has a clear purpose irrelevant to the tax avoidance in the title trust and, to the extent that it is recognized that there was no purpose of tax avoidance in the title trust, and that there was no tax avoidance in the future at the time of the title trust or at the time of the title trust, it must be proved to the extent that there is no doubt if the ordinary person is not a doubt by objective and supporting evidence that there was no tax avoidance (see, e.g., Supreme Court Decision 2004Du1200

(B) In light of the following circumstances, which can be seen by comprehensively considering the facts and the entire purport of the facts and arguments that were examined and recognized as above, that is, where the title trust of the first and second stocks of this case is not discovered, and thus the Plaintiff is deemed to be the actual owner of the above stocks, the Plaintiff would avoid gift tax, and it is not foreseeable that the Plaintiff would not have the obligation to pay global income tax due to the failure of BBB’s dividends at the time of title trust of the first and second stocks, and there is no other evidence to support that the entries in each of the evidence Nos. 41 through 44 (including each number) alone did not have the purpose of tax avoidance, and there is no other evidence to support this. Therefore, the second assertion of the Plaintiff is without merit.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.