If the title truster reported the capital gains tax that occurred from the disposal of shares under the name of the title trustee, the defect is serious and apparent.

The reason why a title trustee becomes the subject of tax payment on behalf of a title truster is illegal, but its defect is not significant. Moreover, from the perspective of the general public including the tax authority, the title trust is not easily known, and rather, the title trustee is understood as an owner as the title trustee. Thus, the title truster’s reporting of capital gains tax on the disposal of shares in the name of the Plaintiff, who is the title trustee, cannot be deemed as an apparent defect.

2011 Bada 194292 Return of Fraudulent Gains

United Kingdom A

Korea

June 21, 2012

July 19, 2012

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 00 won with 5% interest per annum from October 22, 2009 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On October 2006, the representative director of Nonparty BB BB requested the Plaintiff, who is in close friendly relationship, to lend the Plaintiff’s name with respect to the shares of BB in order to avoid the restriction of oligopolistic shareholders, and the Plaintiff believed that the damage of the KimCCC would not be caused, and lent his name.

B. On January 30, 2008, KimCC concluded a stock sales contract with the non-party agricultural, fishery, and home shopping company on January 30, 2008 using the certificate of personal seal impression, seal impression certificate, resident registration certificate, and the plaintiff's agricultural bank passbook and password, which was issued by the plaintiff in order to sell BB stocks in the plaintiff's name. The purchase price was deposited in the plaintiff's agricultural bank account, and then withdrawn the purchase price on the same day and consumed it in the repayment of its obligation. On February 2008, the plaintiff returned the plaintiff's seal impression, resident registration certificate, and agricultural bank passbook to the plaintiff at the plaintiff's request.

C. On May 29, 2009, KimCC filed a final return on capital gains tax for the transfer of the above shares in the Plaintiff’s name in 2008, and did not pay KRW 000,000, which is the payable tax amount.

D. On August 10, 2009, the Defendant voluntarily reported to the Plaintiff on August 10, 2009, and determined and notified 500 won of the capital gains tax unpaid, and the Plaintiff paid the said capital gains tax and additional 00 won on October 21, 2009.

E. On November 2009, the Plaintiff filed an appeal with the Tax Tribunal for the absence of the fact that the Plaintiff filed the final return of capital gains tax, and the Director of the Tax Tribunal dismissed the Plaintiff’s appeal on the grounds that the disposition on December 23, 2009 did not exist.

F. On August 26, 2010, the Plaintiff filed a lawsuit against the head of Ansan District Tax Office in order to revoke the Defendant’s disposition of revocation of capital gains tax imposition, and filed a lawsuit that revokes the Defendant’s assessment and notice of capital gains tax imposition, and the court dismissed the lawsuit on the ground that the tax authority’s disposition of imposition was nonexistent in the case of a tax return method on August 26, 2010, and the Plaintiff appealed as Seoul High Court 2010Nu28856, and the Plaintiff joined the lawsuit seeking the return of erroneous or erroneous payments paid by the Plaintiff as a preliminary claim, and that the head of Ansan District Tax Office dismissed the lawsuit on the primary claim and the preliminary claim on

[Grounds for Recognition: The items in Gap evidence 1 to 3, and the purport of the whole pleadings]

2. Summary of the plaintiff's assertion

The plaintiff, while KimCC, a title truster of shares, reported capital gains tax without the plaintiff's consent, the defendant's excessive imposition of capital gains tax from the plaintiff who is only a title trustee, is unlawful and invalid, and the defendant must return the money paid by the plaintiff as unjust enrichment.

3. Determination

As seen earlier, the Plaintiff’s payment of capital gains tax on behalf of the title truster BB is an unlawful act under the substance over form principle. However, in order to receive a return of tax paid by the Plaintiff, the foregoing collection act should be deemed as invalid beyond the extent of illegality. The mere fact that there is a serious defect in the tax disposition so that the said tax disposition can be deemed null and void, and the defect should be objectively (foreign) obvious (see, e.g., Supreme Court Decisions 91Nu12196, May 22, 1993; 94Da5019, Apr. 28, 1995). Unless the Plaintiff’s legal relationship or factual relations (income or act) under which the tax was imposed on behalf of the title truster, 100, and 200, the tax authority’s imposition of capital gains tax on behalf of the title truster (see, e.g., Supreme Court Decision 90Da5019, Sept. 19, 197).

4. Conclusion

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