Whether the title trust is presumed to have been the purpose of tax avoidance or not.

As long as the title trust has been made, the burden of proving that the purpose of tax avoidance is presumed to have been presumed to have been achieved and that there was no objective

Article 43 of the Inheritance Tax and Gift Tax Act

2014Guhap6786 Revocation of Disposition of Imposition of Gift Tax

OO

In the process of returning shares to his own name, the title trustee of this case shall pay shares transfer proceeds.

(1) The Plaintiff may recover the transfer proceeds and take over the GGG shares from FF.

In case of use, a gift tax may be borne by ascertaining the amount equivalent to such transfer price as a donation.

In order to avoid the risk of gift tax imposition upon consultation with the company, the shares of this case

B acquired under the name of the title trustee of this case. However, the act of restoring the title trust relationship is an act of restoring it.

Inasmuch as gift tax is not imposed on a title truster because it is not a separate gift, the Plaintiff is avoided.

The gift tax that was intended to be created is based on the wrong tax consulting of the tax accountant.

There was no room for doing so. Accordingly, the Plaintiff’s tax that is unable to occur smoothly.

Since the shares of this case were trusted in title, this is referred to in Article 45-2 of the Inheritance Tax and Gift Tax Act.

It should be deemed that the title trust of this case is not included in the "tax avoidance purpose". In addition, the plaintiff is a title trust of this case

The reduced tax is merely a minor level because it is an incidental tax, and also the purpose of tax avoidance is "the tax avoidance".

Nevertheless, each of the dispositions of this case is unlawful.

2) procedural defect

The defendants were notified in the course of each disposition of this case and the amount of additional tax and calculated.

Since the penalty tax was not specified separately, the part on penalty tax is illegal.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Whether there are substantive defects

The legislative intent of Article 45-2 of the Inheritance Tax and Gift Tax Act is to make tax avoidance by using the title trust system.

Recognizing an exception to the substance over form principle in the purport that tax justice is realized by preventing it from being prevented.

As such, only if the purpose of title trust is not included in the purpose of tax avoidance

In such cases, the application of the proviso of the same Article is possible, and there is no purpose of tax avoidance.

The burden of proof is against the person who asserts it (Supreme Court Decision 2003Du13649 Delivered on December 23, 2004).

1. The director of the AA tax office;

2. BB director of the tax office.

3. The director of theCC;

4. The director of the D Tax Office.

5. The director of the E Tax Office.

AA Head of a tax office on November 1, 2012, KRW 178,425,100 (additional tax) of gift tax imposed on the Plaintiff on the Plaintiff on November 1, 2012

93,66,610 won (including 93,66,610 won) imposed by Defendant BB Director, against the Plaintiff on November 12, 2012

Han 178,425,100 won (additional Tax 93,66,610 won) and the imposition of the tax by DefendantCC director, and the director of the tax office on November 1, 2012

The defendant, subject to the imposition of gift tax of KRW 338,687,760 (including additional tax of KRW 177,798,606);

D. Gift tax amounting to KRW 417,938,00 (Additional Tax) imposed on the Plaintiff on November 5, 2012 by the head of the D Tax Office

The imposition of 219,402,064 won shall be included) and the imposition of 219,402,064 shall be made by Defendant EE Director on November 8, 2012

The imposition of a gift tax of KRW 372,282,070 (including additional tax of KRW 195,434,384) shall be revoked.

April 9, 2015

May 14, 2015

1. All of the Plaintiff’s claims are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

Cheong-gu Office

1. Details of the disposition;

A. The Plaintiff, from February 1997 to October 2001, was in office as the representative of FFFF corporation (hereinafter “FFF”), and on December 8, 1998, acquired 21,121 shares of FFF (hereinafter “the instant FFF shares”) under the name of O (3,00 shares), OO (3,00 shares), OOO (4,63 shares), OOO (58 shares), OOO (5,00 shares), 5,00 shares (5,00 shares) under the name of 3,58,740 shares of FFF shares, and 34,453 shares under the name of 36,453,430 shares of the Plaintiff at the time when the Plaintiff was in office as the title trustee (hereinafter “the instant title trustee”).

B. As a result of the tax investigation conducted with respect to FF on August 200, the director of the regional tax office levied gift tax amounting to KRW 237,000,000,000 as listed below [Attachment 1] by applying Article 43 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998), the Plaintiff acquired shares 70% (3,200,000,000) of the shares of GGGG Co., Ltd. (hereinafter referred to as “GGG”) to the title trustee of this case, and the Plaintiff, a joint taxpayer, was fully paid it around that time. Meanwhile, FF was changed to GGG Co., Ltd. in around 2001, and became incorporated into an affiliate of FF to form an affiliate of FF.

D. On April 26, 2004, the Plaintiff recovered the FFF shares in the instant case from the title trustee at KRW 170,00 per share, KRW 3,590,570,000 per share, and sold the FF shares in the Plaintiff’s name at KRW 298,000 per share to HH (hereinafter “H”) on April 22, 2004 and April 30, 2004.

E. Meanwhile, in the process of transferring the FFF’s management right to HH by means of selling all the FFF’s shares in the Plaintiff’s name to HH, the Plaintiff agreed with HH to acquire all the 3,220,000 shares of the GGG that were held by the Seoul Feed, and accordingly purchased the shares from the FFF on April 28, 2004. However, the 1,099,262 shares (hereinafter “the shares of this case”) was acquired in the name of the title trustee of this case (hereinafter “the title trust of this case”), and the number of shares acquired by each title trustee was indicated below [Attachment 2]. Accordingly, the Plaintiff came to own 62.171% of the shares of the GG in its name and 27.8% of the shares of this case under the name of the title trustee of this case.

F. Since July 23, 2012 to September 20, 2012, the commissioner of the Korea Regional Tax Office issued a notice of designation of joint and several taxpayers (hereinafter referred to as "each of the dispositions of this case") to the Plaintiff, the title truster, respectively, on the ground that the Plaintiff deemed that the instant shares were respectively trusted to the instant title trustee on April 28, 2004, pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the "Inheritance Tax and Gift Tax Act"). At the same time, at the same time, the Plaintiff, the title truster, at the same time, issued a notice of designation of joint and several taxpayers (hereinafter referred to as "each of the dispositions of this case") to the entire amount of tax imposed and notified.

G. The Plaintiff filed an objection against each of the instant dispositions and filed an appeal with the Tax Tribunal. However, the Tax Tribunal dismissed the appeal on June 3, 2014 (Service on the Plaintiff on June 11, 2014). The Plaintiff appealed and filed the instant lawsuit on September 3, 2014.

[Ground for Recognition: Facts without dispute, Gap's evidence 1 through 6, 8, 9, Eul's evidence 1, 3 through 11, and the purport of whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

1) substantive defect

The Plaintiff was entrusted under the name of the title trustee of this case with the FFF shares

[See] As to the absence of the purpose of tax avoidance, the purpose of tax avoidance is H.

It may be proven by means of proving that there has been any other purpose than that of others (Supreme Court)

- Supreme Court Decision 2004Du7733 Decided May 12, 2006, 2004Du13936 Decided May 25, 2006, etc.;

The nominal owner who bears the burden of proof is deemed to have no tax avoidance purpose in the title trust.

to the extent that there was an obvious purpose of tax avoidance, and at the time of title trust or in the future,

there is no tax to be avoided by objective and objective evidence

It is necessary to prove to the extent that it does not have any doubt (Supreme Court Decision 2006 September 22, 2006).

204Du11220, see Supreme Court Decision 2004Du11220

In light of the above legal principles, as long as the title trust was conducted, this company will review the case.

The title trust will be presumed to have been the purpose of tax avoidance, so that the title trust will be presumed to have been for tax avoidance purposes.

The burden of proving that there was no purpose of tax avoidance is the plaintiff, but the above burden of proof is the plaintiff.

In addition to the overall purport of the arguments, the following:

In full view of the circumstances, the materials submitted by the Plaintiff alone to avoid tax in the title trust of this case

Recognizing that there was no doubt, it seems that the presumption was insufficient to reverse the presumption.

1. First, as the Plaintiff itself recognizes, the tax association in the title trust of this case

The purpose to avoid is, however, that it is a tax for which the plaintiff is unable to impose it on a timely basis.

In addition to the above, no other purpose exists.

C. In other words, a special business objective (busi business) intended to be achieved through the title trust of this case

purpose)이나 법률적‧경제적 효과가 존재하지 않는다.

② The Plaintiff attempted to reduce the tax that was intended to be reduced through the title trust of this case is solely named.

It is not imposed in practice as a gift tax imposed in the process of resolving the consignment relationship, which is not a tax.

As a result, the Plaintiff was unable to impose taxes on the part of its original tax advice.

The assertion to the effect that there was no purpose of tax avoidance, as the tax avoidance was intended;

C. However, at the time of (i) support that the Plaintiff received wrong tax advice from a certified tax accountant.

(ii) the avoidance of taxes stipulated in Article 45-2 of the Inheritance Tax and Gift Tax Act.

'Purpose' is not limited to gift tax (Supreme Court Decision 191 November 14, 1995).

High 94Nu11729), and as the plaintiff himself acknowledges, the plaintiff has already taken the shares of this case.

In the process of acquisition, approximately KRW 33 million did not pay the deemed acquisition tax, and approximately KRW 7.2 million global income of KRW 7.2 million.

Since tax (the dividend income from the shares of this case) has been mitigated, the value of the shares of this case shall be the value of the shares.

In the light of this, it is difficult to view that the above amount of tax is minor or incidental, and (iii) it is:

In addition, even if the Plaintiff did not evade or have been mitigated, the Inheritance Tax and Gift Tax Act

45-2 Whether there is "the purpose of tax avoidance" or not shall be determined at the time of title trust.

Then, it is not necessary to determine whether to evade taxes (Supreme Court Decision 2007Da11000).

The title trust of this case is formed on January 27, 2005, and the previous year at the time when the title trust of this case was made.

The distributable profits of the GG as of the end of 2003 amounting to approximately KRW 1 billion, and thereafter, the annual dividends amounting to KRW 1 billion.

Inasmuch as distributable profits reach less than 1 billion won, a large amount of 2 billion won, whether dividends are carried out or not.

Therefore, the Plaintiff could have reduced additional dividend income tax and general income tax.

As such, the Plaintiff was actually mitigated at the time when the title trust in this case was made.

It can be said that there was a possibility of additional evasion in addition to the tax amount.

On the other hand, the Plaintiff does not need to pay capital gains tax due to the title trust of this case.

D. The Plaintiff reported and paid approximately KRW 250,500,000,000,000,000,000,000

the amount of tax is approximately KRW 40,000,000, which is only incidental to the title trust, and there is a minor reduction in the amount of tax.

The plaintiff only asserts that the plaintiff did not have the purpose of tax avoidance. This argues that the plaintiff did not have the purpose of tax avoidance.

B. In addition to the overall purport of the facts and evidence examined earlier, the Plaintiff’s assertion

As such, in the course of restoring the FF stocks of this case in the name of the Plaintiff, the transferor

The sum of KRW 257,298,00 and KRW 239,846,00 and Securities Transaction Tax 17,952,00 and KRW 257,298,000 are reported and paid.

Although it can be known that the tax amount is not the shares of this case, but the FF shares of this case.

(1) The tax amount incurred in the process of restoring the name of the title holder in the title trust of this case shall be the tax amount irrelevant to the title trust

The plaintiff's assertion is not acceptable as it constitutes tax (in addition, the FF of this case).

The Plaintiff sold shares to the Plaintiff without title trust from the beginning, or the instant shares were held by the Plaintiff.

If the name was returned from the trustee without payment, the acquisition price per share shall be determined.

The capital gains tax was imposed at KRW 40,000, which is the said capital gains tax and securities transaction.

This seems to be a significant portion of the tax amount.

Therefore, the title trust of this case is presumed to have the purpose of tax avoidance.

Since the plaintiff's assertion that there are substantive defects in each disposition of this case can be accepted.

shall not be effective.

2) Whether procedural defects are procedural defects

When principal tax and additional tax are concurrently imposed by a tax payment notice, a tax payment notice shall be issued.

It is necessary to separate the principal tax and the penalty tax amount and the calculation basis, etc.

Where penalty taxes of the kind are imposed together, the penalty taxes and the penalty taxes for each type between them;

Each tax disposition by itself by a taxpayer, upon separate entry of grounds for withdrawal, etc.

The Supreme Court en banc Decision 2010Du12347 Decided October 18, 2012

(Supreme Court Decision)

However, in light of the aforementioned facts and the overall purport of the evidence duly admitted, the Defendants

In rendering each disposition of this case, the "Gift Decision Resolution delivered to the Plaintiff" may be added to the "Gift Decision Resolution."

The kinds of tax and the amount of tax according thereto, and the basis for calculation are not specified, but are attached thereto.

The type and tax amount of the additional tax, in the document referred to as "the basis for calculating the additional tax of gift tax" served thickness; and

Pursuant to the fact that the basis for withdrawal is specified, each disposition of this case shall be a kind of additional tax.

Therefore, it is judged that the tax amount by category and the calculation basis are stated separately.

The plaintiff's assertion on this part cannot be accepted.

3. Conclusion

Then, the plaintiff's claim is dismissed in entirety as it is without merit. It is so decided as per Disposition.

(c)