Cho High 2010 Before 3119 ( October 20, 2011)

It is reasonable to view that a title trust was made, not by receiving an investment of stock acquisition funds.

In light of the facts stated in the written confirmation at the time of the investigation, it is reasonable to deem that, after entering into an investment agreement, the title trust was made to the Plaintiff instead of being invested in the stock acquisition fund, and it is insufficient to recognize that there was no purpose of tax avoidance in the title trust

2011Guhap3137 Revocation of Disposition of Imposition of Gift Tax

O KimO

The Intervenor joining the Plaintiff

XX Stock Company

The Director of the National Tax Service

September 26, 2012

October 31, 2012

1. All of the plaintiff's claims are dismissed.

2. Of the costs of lawsuit, the part pertaining to participation by the Intervenor shall be borne by the Intervenor, and the remainder shall be borne by the Plaintiff.

The Defendant’s disposition of imposing gift tax of KRW 000 on the Plaintiff in April 5, 2010 and KRW 000 on the gift tax of KRW 200 on October 6, 2010 shall be revoked.

1. Details of the disposition;

A. On August 9, 1996, Jung-gu, Chungcheongnam-gu, Dong-dong, 310-25 m2, and 11 m2,095 m2 (hereinafter “the instant forest”) acquired a total of 13,095 m2,000 m2 (hereinafter “the instant forest”) on October 31, 2008, and paid 000 won (the down payment is 000 won on June 7, 2006, the intermediate payment is 00 won on September 5, 2006, the intermediate payment is 00 won on February 2, 2007, and the remainder of 00 m2, October 31, 2008, but did not pay the remainder of KRW 13,000 on May 30, 2009, respectively.

B. Meanwhile, from November 21, 2007 to November 22, 2009, Jeong transferred the amount of KRW 000 to the Ocheon Branch Account in the name of the Plaintiff, including the sale price of the instant forest, and from November 21, 2007 to November 22, 2009. The Plaintiff acquired YY shares of a listed corporation with the total amount of KRW 412,043 (hereinafter “instant shares”) from November 21, 2007 to November 23, 2007.

C. On April 9, 2010, the Defendant rendered the Plaintiff a disposition imposing gift tax of KRW 000 on the Plaintiff for the year 2008, and on October 6, 2010, on the ground that the first disposition of KRW 000 for the gift tax of KRW 2008 was included in the part to be deemed as at the time of donation, among the initial disposition of KRW 31, 2007, and imposed a disposition imposing gift tax of KRW 000 for the year 2007 (hereinafter referred to as “each disposition of this case”).

[Reasons for Recognition] Facts without dispute, entry of Eul Nos. 1, 2, 4 through 6 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff did not receive the title trust of the instant shares from AA, but received the investment of stock acquisition funds after concluding an investment agreement with AA, but the instant disposition based on the premise that the Plaintiff received the title trust of the instant shares from AA, was unlawful.

(2) Even if the Plaintiff received the instant shares in title trust from AA, the instant disposition was unlawful, since there was no purpose to avoid taxes.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) On December 17, 209, the Plaintiff stated to the effect that, in addition to the above evidence as to whether the Plaintiff was given a title trust of the Plaintiff’s shares, i.e., 00 won deposited into the Plaintiff’s account in the process of door-to-door trading with the Defendant’s employees, i.e., 00 won, i., e., 00 won, and 00 won, i.e., 00 won deposited into the Plaintiff’s account in the process of door-to-door trading, i., e., 00 won, and 0 won, i., e., 00 won, and 00 won, i., e., 00 won, i., e., 00 won, i., e., 00 won, i., i., i., e., 100 won, ii).

(2) As to the existence of the purpose of tax avoidance

The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) is to recognize an exception to the substance over form principle to the effect that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. As such, the proviso of the same Article can be applied only when the purpose of the title trust is not included in the purpose of the tax avoidance, and in this case, the burden of proving that there was no purpose of the tax avoidance is against the person asserting it. Therefore, the burden of proof can be proved by means of proving that there was a purpose other than the purpose of the tax avoidance. However, the nominal owner who bears the burden of proof has a clear purpose irrelevant to the tax avoidance to the extent that it is recognized that there was no purpose of the tax avoidance in the title trust, and that there was no tax avoidance at the time of the title trust or in the future, by objective and supporting evidence that there was no tax avoidance at the time of the title trust (see, e.g., Supreme Court Decision 2004Du1204.).

As to the instant case, the Plaintiff agreed to pay the transfer income tax on the transfer of the forest of this case on behalf of the KimCC. Since the total appraised value of the real estate held by Jeong at the time exceeds the delinquent tax amount, the Plaintiff asserted that there was no purpose of tax avoidance in the title trust of the instant shares. However, the above circumstance cited by the Plaintiff is insufficient to recognize that there was no purpose of tax avoidance in the title trust of this case, and there is no other evidence to acknowledge this differently. The Plaintiff’s assertion on this part is

3. Conclusion

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