Gwangju District Court-2018-Gu Partnership-1777 ( October 10, 2019)

Cho High-2018-Mining-0507 ( March 28, 2018)

It is reasonable to deem that there was both the purpose of evading existing debts and avoiding future taxes, etc., so it cannot be said that there was no purpose of tax avoidance in the above title trust.

Even if the main purpose of the title trust is to facilitate the construction of △△△, it is reasonable to deem that there was both the above main purpose and the purpose of evading existing obligations and evading future taxes. Therefore, it cannot be said that there was no tax avoidance purpose in the title trust.

Article 45-2 of the Inheritance Tax and Gift Tax Act (Presumption of Title Trust Donation)

The revocation of revocation of the imposition of gift tax by the Gwangju High Court 2019Nu10251

AAA foreign1

○ Head of tax office

on October 30, 2019

on October 29, 2019

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

the Gu Office's place of service and place of service

The judgment of the first instance shall be revoked. The defendant shall revoke the imposition of gift tax of KRW 12,213,237 (including additional tax; hereinafter the same shall apply) on October 10, 201 for the portion belonging to Plaintiff AA in 209 and the disposition of joint notification of the designation of a person jointly liable for tax payment to Plaintiff BB regarding the gift tax.

1. Details of the disposition;

가. △△건설 주식회사(이하 '△△건설'이라 한다, 변경 전 상호는 적건설 주식회사이다)는 2001. 5. 17. 토목건축공사업 등을 목적으로 설립된 회사이다.

B. On April 28, 2009, Plaintiff AA acquired shares 228,000 shares, etc. issued by △△ Construction from Aaa and BB on a transfer price of KRW 280,000,000, and wholly held title trust from June 15, 2009 to another person under the name of Plaintiff BB, etc., and the details are as listed below.

Total 228,000 228,000

C. From June 29, 2017 to August 7, 2017, the director of the regional tax office conducted a tax investigation on △△ Construction, etc., and confirmed that the shares of △△ Construction are under title trust, and notified the result thereof to the Defendant. Accordingly, on October 10, 2017, the Defendant imposed a gift tax on Plaintiff BB on the ground that the title trust in this case is deemed as a gift pursuant to the main sentence of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter the same) on the ground that the title trust in this case is deemed as a gift, and issued a notice on the designation of a person jointly liable for tax payment (hereinafter collectively referred to as “instant disposition”).

D. The Plaintiffs filed an appeal with the Tax Tribunal on March 28, 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 8, Eul evidence 1, the purport of the whole pleadings

2. The plaintiffs' assertion

A. Plaintiff AA’s title trust of 47,880 shares of △△ Construction to Plaintiff BB on or around June 15, 2009 did not intend to evade taxes for the purpose of facilitating the construction of △△△. There was no tax to avoid taxes through the said title trust. Therefore, it is unlawful for the Defendant to deem the said title trust as a gift and impose gift tax on Plaintiff BB by deeming it illegal.

B. On the premise that the imposition of the above gift tax is lawful, the Defendant imposed a notice on the Plaintiff AA of the designation of a joint and several taxpayer for the above gift tax. As long as the imposition of the above gift tax is illegal, the notice of designation of a joint and several taxpayer is also unlawful.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether there exists a purpose of tax avoidance in the title trust with Plaintiff BB

1) The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to effectively prevent the act of tax avoidance using the title trust system and realize the tax justice. Thus, if the title trust was acknowledged to have been made for any reason other than the purpose of tax avoidance, and only a minor reduction of tax incidental to the title trust occurs, it cannot be readily concluded that there was "the purpose of tax avoidance" in such title trust. However, in light of the legislative intent of the above provision, it is impossible to determine that there was an intention of tax avoidance, in addition, if there was an intention of tax avoidance by applying the proviso of the above provision, only if the purpose of tax avoidance is not included in the purpose of the title trust, it is impossible to determine as at the time of the title trust. In addition, whether there was an intention of tax avoidance, it should not be determined as at the time of tax avoidance, and then whether it was actually evaded after it is determined as at the time of tax avoidance. Meanwhile, the burden of proving that there was no objective or objective purpose of tax avoidance, such as the title trust, to the extent that there was no other objective or proof of tax avoidance.

2) In light of the following facts and circumstances, the determination of the instant case is based on: (a) evidence as seen earlier; (b) evidence as seen earlier; (c) evidence as indicated in Gap’s Nos. 4 through 7, 9, 12, 14 through 16 (including each number; hereinafter the same shall apply); and (d) evidence Eul’s evidence as indicated in Eul’s No. 2, the overall purport of the pleadings as a whole, and the following facts and circumstances, it is difficult to view that the Plaintiffs’ assertion was made sufficient proof to the extent that there was a clear purpose of tax avoidance to the extent that the said title trust had no objective of tax avoidance.

A) According to Article 45-2(2) of the former Inheritance Tax and Gift Tax Act, the purpose of tax avoidance is presumed to exist if a transfer of shares, etc. is not made in the name of the actual owner. However, Plaintiff AA made a title trust of 47,880 shares of △△ Construction that it acquired on or around June 15, 2009 and did not transfer a title to Plaintiff BB in its own name, and thus, it is presumed that the said title trust had an objective of tax avoidance.

나) 원고 AAA은 앞서 본 것처럼 2009. 6. 15.경 자신이 취득한△△건설 주식 전부를 원고 BBB을 비롯하여 5인에게 명의신탁 하였는데 명의수탁자들 중 원고 AAA과 특수관계에 있는 사람은 누이인 CCC가 유일하고, 각 명의수탁자들의 지분율은 모두 50% 미만이었다. 이로써 원고 AAA은 주식의 명의를 기준으로 할 때 △△건설이 법인세 등을 체납하더라도 구 국세기본법(2010. 1. 1. 법률 제9911호로 개정되기 전의 것) 제39조에서 정하는 '출자자의 제2차 납세의무'를 부담하지 않게 되었다(원고 AAA은 △△건설의 주식을 취득하기 이전인 2007. 7. 27.까지 건설 주식회사를 운영하였는데, 건설 주식회사의 주식을 원고 AAA이 약 22.86%, 원고 AAA의 배우자 ㅁㅁㅁ이 약 14.98%, 원고 AAA으로부터 이 사건 △△건설의 주식47,880~54,720주를 명의신탁 받은 원고 BBB이 약 15.68%를 각 소유하고 있었다. 그런데 건설 주식회사는 2007. 7. 27. 폐업하고, 당시 건설 주식회사가 체납한 법인세, 부가가치세 등이 2018. 11. 11.을 기준으로 합계 95,408,130원에 이르렀음에도,건설 주식회사에 대한 원고 AAA과 특수관계인 ㅁㅁㅁ의 주식 지분 합계가 약 37.84%에 불과하여 위 건설의 체납액에 대하여 원고 AAA은 2차 납세의무를 부담하지 않은바 있다). 나아가 조세회피목적이 있었는지 여부는 명의신탁 당시를 기준으로 판단하여야 하므로, 이 사건 처분 시까지 △△건설이 법인세 등을 체납하지 아니하여 원고 AAA이 실제 회피한 조세가 없다는 사정만으로는 위 명의신탁에 조세회피의 목적이 없다고 할 수 없다. 이에 대하여 원고들은 원고 AAA이 위 명의신탁 무렵 이미 △△건설의 경영을 사실상 지배하고 있어 법인세 등에 대한 '출자자의 2차 납세의무'를 부담하고 있었으므로, 조세를 회피하려는 목적이 없었다는 취지로 주장한다. 그러나 원고 AAA은 원고 BBB을 비롯하여 여러 명에게 주식을 분산하여 명의를 신탁함으로써 자신이 과점주주가 아니라거나 과점주주가 존재하지 않는다는 외관을 스스로 만들어낸 데다가 '법인의 경영을 사실상 지배하는 자'에 해당하는지 여부는 외부에서 쉽게 포착하기 어렵기 때문에 명의신탁 여부가 밝혀지지 않는 한 원고 AAA은 '출자자의 제2차 납세의무'를 부담한다고 단정할 수 없으므로, 설령 원고 AAA이 위 명의신탁 당시 △△건설의 경영을 사실상 지배하는 자에 해당한다고 하더라도, 위 명의신탁에 조세회피의 목적이 없다고 할 수는 없다.

C) On June 15, 2009, Plaintiff AA was able to avoid or reduce comprehensive income tax that is excluded from taxation or subject to progressive tax rate based on the addition of other income even if the future dividend income accrues by distributing △△ Construction stocks to various persons, including Plaintiff BB, around June 15, 2009. Furthermore, the mere fact that △△ Construction did not distribute until the disposition of this case, and there was no tax evaded by the time of the disposition of this case cannot be said to have no purpose of tax avoidance in the above title trust.

The plaintiffs asserted that the finance of △△ Construction around June 15, 2009, when the above title trust was held, was in a state of deficit, so it could not be anticipated that shareholders would be entitled to dividends within the nearest time, and that there was no purpose of evading the comprehensive income tax on the dividend income.

However, considering the fact that the above title trust relationship has been maintained for a considerable period until April 30, 2019, and that when the period of the title trust of the shares has been maintained for a long period, the dividend income may accrue in that period. Plaintiff AA intended to acquire economic benefits by operating △△ Construction with the purpose of acquiring the shares and the right of management of △△ Construction and operating △△△, making it possible to expect the occurrence of future dividend income sufficiently. In fact, △△ Construction was able to hold a considerable amount of un disposed earned surplus from 2010 to 2017, and 1) dividend income could have been generated to shareholders, including Plaintiff BB, solely on the basis that the finance of △△△△ Construction was insufficient at the time of the above title trust, it is difficult to deem that there was no objective of evading the comprehensive income tax against the Plaintiffs.

D) In order to operate the △△ Construction, the Plaintiffs asserted that there was a need to obtain loans, etc., but, since Plaintiff AA’s credit status was not good, the title trust had no choice but to be held in title trust to the trustee with good credit standing. Therefore, Plaintiff AA asserted that the aforementioned title trust had a clear purpose irrelevant to tax avoidance. Upon Plaintiff AA’s application by the National Agricultural Cooperative Federation, it is true that: (a) on November 14, 2008, 200 district court 2008Kao66*; (b) was subject to a decision to re-register the defaulters’s list of defaulters; (c) was declared bankrupt on May 27, 2013; (d) was declared bankrupt on May 27, 2013 by 20 district court 2013HadanMa5*, respectively, on April 22, 2014; and (d) thus, (d) there is room to deem that the above title trust’s primary purpose is somewhat smooth to operate the construction of △△△△.

However, even though Plaintiff AA was unable to repay its debt to its own National Agricultural Cooperative Federation and interest in arrears on November 14, 2008, upon receipt of a decision on re-determination of a defaulters’ list on April 28, 2008, Plaintiff AA acquired 228,000 shares of △△ Construction from bbb, etc. on April 28, 2009, and made a title trust with both Plaintiff BB and CCC, DD, EE, FF, etc. Nevertheless, on March 4, 2013, Plaintiff AA filed bankruptcy and application for exemption from all existing obligations through the bankruptcy procedure, by citing the aforementioned ownership of shares. In light of the above circumstances, it appears that Plaintiff AA had no major purpose to avoid tax evasion or tax evasion by hiding its active property, and thus, Plaintiff AA could not be seen as having carried out any tax evasion or tax evasion by means of the aforementioned global income under title trust, etc.

B. Whether a joint and several taxpayer notification disposition against the Plaintiff AA is unlawful

As seen earlier, the imposition of gift tax is lawful, and thus, Plaintiff AA’s assertion on this part is without merit on the premise that it is opposed thereto.

C. Sub-decision

Since the disposition of this case is legitimate, it is based on the premise that the defect in the disposition of this case exists and is unlawful.

The plaintiffs' claims are without merit.

5. Conclusion

Therefore, the plaintiffs' claims shall be dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just in its conclusion, and it is so dismissed in its entirety, and it is so decided as per Disposition.