Seoul Administrative Court 2013Guhap58054 ( October 08, 2015)

Since the nominal owner and the actual owner are different, the disposition imposing gift tax is legitimate by deeming that the nominal owner received a donation from the actual owner.

Paid-in capital increase, the Nonparty paid-in capital increase with the loan borrowed in the name of the company where the Nonparty actually exercised management rights, and the right to dispose of the stocks also belongs to the Nonparty, thus the allegation that the instant shares

Legal fiction of donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2015Nu33679 Revocation of Disposition of Imposition of Gift Tax

CivilAA

O Head of tax office

September 18, 2015

October 23, 2015

1.The judgment of the first instance shall be modified as follows:

A. Of the instant lawsuit, “the part of the instant lawsuit,” the Defendant’s rejection of “the claim for revocation on the part of the OOO in the disposition imposing gift tax on the Plaintiff on December 1, 201.”

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance shall be revoked. The imposition of the gift tax OOO on December 1, 201 by the defendant against the plaintiff shall be revoked.

1. Details of the disposition;

A. B between the end of 2006 and the beginning of 2007, 80% of the shares in DD Development Co., Ltd. (hereinafter “DD Development”) and the management right were acquired from the Plaintiff and 0CC, and directly operated DD Development. The Plaintiff was registered as the representative director of the said company from May 2009 even after the transfer of the shares to B. However, the Plaintiff did not participate in the operation of the said company.

B. On August 16, 2007, the director of the Central Regional Tax Office of Central Regional Tax Office, among the consolidated investigation into D Development, borrowed OO members from EE Bank Co., Ltd. (hereinafter referred to as “EEE Bank”) and treated them as lending them to this B. B on August 28, 2007, the above OOO members of the FF Energy Co., Ltd. (hereinafter referred to as “Co. GG” was changed to September 6, 201; hereinafter referred to as “F Energy”) acquired shares in the FF Energy Co., Ltd. (hereinafter referred to as “F Energy”) in the name of five persons including the Plaintiff as indicated in the table, and notified the Defendant of the taxation data on title trust regarding OO shares allocated in the name of the Plaintiff as the charge of title trust against the Plaintiff.

Date of acquisition

Person in whose name the acquisition is made

The par value per share;

Number of shares (number of shares)

Stock acquisition value;

Equity ratio (%)

August 28, 2007

OO

OOO

OOO

2.10

August 28, 2007

[G]

OO

OOO

OOO

2.10

August 28, 2007

HaH

OO

OOO

OOO

1.57

August 28, 2007

Court of Justice

OO

OOO

OOO

1.57

August 28, 2007

KK

OO

OOO

OOO

1.05

Total

OOO

OOO

8.39

C. Accordingly, on December 1, 2011, the Defendant conducted a gift tax investigation on the Plaintiff, and determined and notified OOO of the gift tax on the gift of August 28, 2007 to the Plaintiff based on the provision on the constructive gift of title trust property, deeming that this BB was a title trust to the Plaintiff.

D. The Plaintiff appealed and filed an objection on February 28, 2012, but received a decision of dismissal. On July 2, 2012, the Plaintiff filed an appeal with the Tax Tribunal, but received a decision of dismissal on June 4, 2013.

E. On November 12, 2014, the Defendant: (a) reduced the estimated value of the gift tax on the Plaintiff, thereby having determined that the gift tax on the donation of August 28, 2007 as an OOO (hereinafter “instant disposition”).

F. On September 4, 2015, the Defendant changed the donation date from August 28, 2007 to August 17, 2007, among the instant disposition grounds, from the date of pleading.

G. After the closing of argument in the instant case, the Defendant revoked ex officio the OOO on the part of the instant disposition (the Defendant’s reference document written on October 2, 2015).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 8, Eul evidence Nos. 12 and 16, and the purport of the body before oral argument

2. Whether the part concerning the claim for revocation of ex officio cancelled tax amount among the lawsuit in this case is legitimate

ex officio, the plaintiff sought revocation of the imposition of the gift tax by OOO, but the defendant revoked ex officio the additional tax by OOOO after the closing of the argument in this case.

Therefore, the part concerning the claim for cancellation against the OOO as part of the instant lawsuit is unlawful because there is no subject to the claim for cancellation.

3. Whether the principal tax of this case is lawful

A. The plaintiff's assertion

(1) Whether the defendant's reason for disposition is permitted to exchange for another reason

The addition or modification of the reason for disposition is allowed within the limit that the basic factual relations are identical to the reason for the original disposition. The change of the "date of donation" refers to the change of the object of taxation immediately. Thus, the defendant is not allowed to change the donation date, which serves as the basis for the disposition of this case,

d. The substantive illegality of the disposition of this case

㈎ 이BB은 FF에너지의 대표이사 전LL로부터 약 70~80억 원 상당의 유상증자 주식을 배정받을 수 있는 권리를 부여받아 원고에게 그 중 20억 원 상당의 주식을 배정받도록 하여 주었고, 이에 원고는 지인들로부터 자금을 차용하여 이BB에게 20억 원을 지급하였는데, 이BB은 위 20억 원을 개인용도로 미리 사용하였다. 이BB은 위 20억 원을 충당하기 위하여 자신이 80% 지분을 가지고 실질적으로 경영하고 있는 DD개발 명의로 EE은행으로부터 80억 원을 차용하여 FF에너지 유상증자 대금으로 납입하였는바, 원고가 이BB에게 20억 원을 이미 지급하였으므로 이 사건 주식은 원고가 실제 소유자로 취득한 것이고, 이BB도 이 사건 주식이 원고의 소유임을 인정하고 있다. 다만 원고는 DD개발의 명의상 대표이사이기 때문에 위 차입금에 대한 연대보증 및 이 사건 주식에 질권을 설정하여 준 것이다.

The monetary loan contract between BB and DD development is made ex post facto by clarifying that the BB borrowed for personal purposes and, when auditing, to verify that the actual borrower of the loan is not DD development, not D development.

㈏ 예비적으로, 원고는 이BB에게 20억 원을 지급하여 20억 원 상당의 채권을 가지고 있었고, 이BB의 진술에 의하더라도 FF에너지 유상증자 직전에 이BB에 대하여 10억 원 상당의 채권을 가지고 있었다고 할 것이며, 원고 및 이BB 사이에 적어도 이 사건 주식으로 시세차익이 생기면 원고가 이BB에게 가지고 있는 채권을 변제받는 것으로 상호 묵시적 합의가 있었다고 할 것인바, 이 사건 주식을 원고 명의로 배정받은 것은 적어도 원고가 이BB에 대하여 가지고 있는 채권을 담보하기 위한 목적이라고 할 것이므로 원고와 이BB 사이에 명의신탁 합의가 있었다고 볼 수는 없다.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

(c) Fact of recognition;

(1) DD Development borrowed 8.5 billion won from EE bank on August 16, 2007 (hereinafter "the loan of this case"), and 8 billion won out of the above loan of this case was used to acquire FF Energy Shares in five names, including the Plaintiff, as stated in the FF Energy Stock Acquisition Statement prior to August 28, 2007.

on August 17, 2007, the Plaintiff was registered as the shareholder of the instant shares in the FF Energy List.

Secondly, the remainder 500 million won, excluding the above 8 billion won out of the borrowed money of this case, was deposited into the account in the name of EM, a driver of this BB, and this B was used individually by this B, and this B traded money with the account in the name of EM in the name of EM.

x) On August 28, 2007, a pledge was established on the loan of this case as security on the remainder of the shares (including the shares acquired in the name of the plaintiff) other than the OOO shares acquired in the name of HK among the OO shares acquired in the above loan amount of eight billion won.

(v)on August 28, 2007, the Fund was transferred from April 13, 2007 to May 14, 2007 as follows:

Deposit Account Name

Date

Amount of money (one thousand won)

Receipt Account Name

Jinay

xN

April 13, 2007

100,000

MM

April 23, 2007

400,000

MM

PrivateP

April 13, 2007

100,000

MM

April 19, 2007

130,000

RRRR

April 23, 2007

30,000

MM

April 27, 2007

150,000

MM

May 11, 2007

20,000

SS

연QQ

May 14, 2007

600,000

Around that time, the Plaintiff remitted the OOOO to the SS account.

Total

1,530,000

*The KN is the action of the UU that operates the events called the Plaintiff and the KINT.

*PrivateP is the Plaintiff’s kind of punishment.

*연QQ은 DD개발의 분양대행사인 ㈜VV의 대표자로서 원고와 알고 지내던 사이다.

⑹ DD개발과 이BB 사이에 2007. 12.경 아래와 같은 내용으로 금전소비대차 계약서가 작성되었다.

Article 1 Facts

1. “A” (D development) borrowed a total of KRW 14.1 billion from EE bank from April 2007 to December 31, 2007 under the name of “A”, and on December 31, 2007, the balance of loans as of December 31, 2007 is KRW 13,824,623,060.

2. On August 16, 2007, EE Bank received the transfer of FF Energy Stock OOO shares (the shareholder: 4 others) issued by the interested party 'B on August 28, 2007 with the payment for FF Energy Capital Subscription, which was actually participated by 'B' (B) as a security for the loan, and the shareholders accepted this.

Article 3 'B' Responsibility

1. “B” shall be liable for all loans borrowed from EE bank in the name of “A”.

2.B as the actual borrower of the loan under Section 1 of Article I, is fully responsible for any change in the value of FF Energy Stocks offered as security to the EE Bank, and such loan shall be repaid by disposing of the shares as soon as the period for protection of such shares expires.

⑺ DD개발은 2007. 10. 31. EE은행으로부터 26억 원을 대출받아 그 중 15억 원을 WW의 대표이사 김XX의 차명계좌인 김YY 명의 계좌로 입금하였고, 2007. 11. 1.경 김XX 명의 계좌에서 2억 원이 곽NN에게, 1억 원이 원고에게, 1 억 원이 연QQ에게 각 송금되었다.

⑻ 원고는 2008. 8. 18. 연QQ에게 액면금 20억 원의 약속어음에 대한 공정증서(강제집행 인낙 취지)를 작성하여 교부하였다.

⑼ 관련자 진술

㈎ 이BB

1. A fact-finding certificate drawn up on August 2010

Around May 2007, ○○ (Plaintiff) paid 2 billion won as the price for capital increase with consideration by participating in FF energy capital increase with the recommendation of the principal (BB) and distributed shares equivalent to that amount.

○ Around the time of the above capital increase, the principal borrowed money from the Z to participate in the capital increase and requested the Z to present data to verify even if the shares were allocated, and requested the privateA to prepare and request a written contract for stock purchase so that the shares equivalent to KRW 220 million among the shares allocated upon capital increase can be seen as the principal.

Pursuant to such request, AA made a delivery with a certificate of personal seal impression attached, while signing and sealing the number and value of shares to be traded and the seller’s personal information to the effect that the OOO shares of the above company are sold at KRW 220 million.

(2) The answer letter dated August 19, 201

○○○ had the LAL promised to allow the principal (BB) to participate in the FF Energy Capital Increase increase amounting to KRW 7 billion. At that time, he accepted the said terms and conditions, but he did not have any money and did not participate in the capital increase increase with the loan.

The reasons for acquisition in the name of the privateA(Plaintiff), JungG each KRW 2 billion, HaH, HaJ, and YJ each KRW 1.5 billion, and YK 1 billion in the capital increase with capital increase. (1) The reasons for acquisition in the name of the privateA(Plaintiff), JungG each KRW 1.5 billion, except for the privateA, are those who are not aware of, and are designated by the lending bank to secure the security.

The reasons why the shares (7 billion won) of the privateA, the PG, the Court of Justice, and the HaH are offered as a security for the loans of DD development. (The answer was that the three shares except the privateA do not want to be offered, but should be so provided by the EE Bank, so it was forced that it would be done from the point of receiving the loans.

○ (L) On April 13, 2007, the KN 100 million won, the KN 100 million won, the KN 40 million won on April 23, 2007, the KN 30 billion won, the private PP 150 million won on April 27, 2007, deposited into the OMF’s OMF’s account, and what is the relationship with EM, and what is the reasons the KU and the privateP was deposited. (The answer is that the KN 100 million won was the driver of EM, and the account was traded in his own name. The above reasons for the deposit are that the principal received the money borrowed from EM. It is not accurate where it was written. However, it is the same as the principal who paid the money using the bonds.

On May 15, 2007, the amount of KRW 800,000,00 of the privateA was deposited into the SS account. The relationship with the SS and what is the reasons for the deposit by the privateAA is. (The answer) The SS is not a person who attempts to engage in a stock transaction-related business but a person who used to engage in such business. However, the SS is memory as a person who attempted to engage in a stock transaction-related business, and the principal was at the time of the AB venture capital increase, a vice-chairperson, and was at the time of the AB Venture capital increase, but the AB Venture capital increase was at the time of the president, but the AB Venture capital increase was not at the time of the failure of the president. Although the reasons for the deposit made by the privateA could not be memory, it is thought that the AB Venture capital increase in Korea

(1) Around April 2007 to May 5, 2007, whether the Plaintiff received KRW 2 billion from the FF-Energy’s capital increase with capital increase with capital increase with capital increase with capital increase with capital increase with capital increase. (1) The fact that the Plaintiff received money directly is not memory. However, since the Plaintiff had to pay money on behalf of the Plaintiff, and the Plaintiff had continued to pay money transactions with the Plaintiff, then the Plaintiff had to pay money to the Plaintiff up to KRW 1 billion with capital increase with capital increase with capital increase with capital increase with capital increase. There is no other statement in the name of the payment for capital increase with capital increase.

The reason why DD Development borrowed KRW 8.5 billion from the EE bank and acquired shares of KRW 2.0 billion in the name of the EE bank is. (Refluence) Since it had already been sufficient to secure the loan of EE bank with three stocks other than the EEA, the remainder was paid with the changed amount of money, the principal of the loan was repaid, and the remainder was to be paid. At the time, DD Development was 821 won at the time, and the market price was 3-4,000 won at the time.

○ (문) 중부지방국세청에서 DD개발 조사시 금융조회를 통해 DD개발이 2007. 10. 31. 대출금 26억 원 중 15억 원을 WW의 대표이사 김XX의 차명계좌인 김YY 명의 계좌로 입금하였고, 김XX는 이 중 2억 원을 곽NN에게, 1억 원을 민AA에게, 1억 원을 연QQ에게 송금한 것으로 확인하였는데, 이 이유는 무엇인지. (답) 잘 기억나지 않는다. 곽NN, 연QQ은 직접적으로 아는 사람이 아닌 것으로 보아 민AA이 보내라고 했을 것 같다.

3. A fact-finding certificate drawn up on February 2012

On August 8, 2007, at the time of FF Energy’s capital increase, the former L had an opportunity to participate in the capital increase with approximately KRW 7 billion, so that the former L had an opportunity to participate in the capital increase with the capital increase, the former L has made it possible for the latter to receive an allocation equal to KRW 2 billion by shares equivalent to that of KRW 2 billion.

○ Stocks issued with capital increase shares owned by the principal shall be memoryd as approximately OOO shares.

Since ○○ himself was engaged in money transactions with another person’s account, such as ordinary M, he would be considered to have sent the amount of money transferred to the account at the time of MaM, etc. to the principal. The principal used the money with bond interest, etc.

The loan was received in the name of DDR development in which the principal was a major shareholder because the loan was received to pay the capital increase for the shares issued by ○○ own stocks, and the loan was received in the name of DDR. Since the privateA used the funds to be received in advance, the loan was also made including the capital increase for the shares issued by the privateA.

○○ does not borrow the name of the privateA for the shares owned by the principal when capital increase is issued.

㈏ 2011. 8. 19.자 조UU 질문서

As of November 1, 2007 through December 2, 2007, 50 million won remitted to the account under the name of MaM was confirmed to have been recovered at KRW 200,000,000,000 from 1.1. to 2.1.2 of the same month, it is reasonable to recover KRW 500,000,000,000,000 from anyone who received the criminal complaint.

○ (L) In the Central Tax Office of China, the DD Development deposited 1.5 billion won out of 2.6 billion won loan 2.6 billion won to W’s representative director KimY’s account, Kim Y’s account, and Kim XX confirmed that the 200 million won out of this amount was remitted to the Y. The 200 million won out of the above amount is consistent with the assertion that the N was repaid KRW 200 million. (The answer is the same as the B was operated beyond the president of the Y, and the NA played a role of raising funds. The 200 million won is considered to have been collected. However, it may not be included because the Y did not go to the Y because the N was a tax issue.

⑽ 한편, 이 사건 처분 무렵 대구지방국세청장은 이 사건 주식 및 정GG, 배HH, 정JJ 명의로 배정받은 주식이 이BB의 소유임을 전제로 이BB에게 FF에너지 유상증자로 인한 증여이익(주당 OOO원)에 대하여 증여세 약 OOOO원을 부과하였다.

[Reasons for Recognition] In the absence of dispute, Gap evidence 3-3, 4, 5, 7 through 22, Eul evidence 2 through 11, and 17, Gap evidence 3-1, 2, and 6-1, and 6-2, part of Gap evidence 3-1, 2, and 6-2, the right of witness of the court of first instance, and the purport of the whole testimony and arguments of this B

D. Determination

(1) Whether the defendant's reason for disposition is permitted to exchange for another reason

In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or change other grounds which are the basis of the original disposition to the extent that the basic factual relations are identical, but the basic factual relations are identical to the same in a basic social fact, based on the specific facts prior to the legal evaluation of the grounds for the disposition. In cases where the disposition agency merely adds or alters only statutes on the basis of the disposition, or specifically indicates the grounds for the initial disposition, to the extent that it does not change specific facts at the time of the disposition, it cannot be deemed that the new grounds for the disposition are added or modified (see, e.g., Supreme Court Decisions 2004Du4482, Nov. 26, 2004; 2006Du4899, Feb. 8, 2007).

On the other hand, the defendant's disposition of this case is about the title trust of OO's shares issued with capital increase on or around August 2007 by the plaintiff, and the change of the date of the gift among the grounds of the disposition of this case is merely about the change of the base date of appraisal. Thus, it is reasonable to view that the defendant is allowed to change the grounds of the disposition as above in exchange for the same factual basis (the defendant should consider the same day as the base date of assessment of gift tax on August 28, 2007, on the premise that the date of the donation in this case was the date of the transfer as OO's assessment, and calculated the assessment value per share of the shares of this case as the base date of assessment of gift tax and changed the date of donation to August 17, 2007. However, according to the statement of 23 evidence, the assessment date of 1O's shares as the base date of assessment on August 17, 2007 can not be deemed unlawful, since it can be deemed that the assessment amount of principal tax of this case.

B. Whether the principal part of the disposition of this case is unlawful

㈎ 앞서 본 인정사실 및 변론 전체의 취지로부터 인정되는 다음의 사정 등을 종합하여 보면, 이 사건 주식의 실제 소유자는 이BB이라고 봄이 상당하고, 원고가 주장하는 바와 같이 2007. 4. 13.경부터 2007. 5. 14.경 사이에 15억 3,000만 원 상당의 자금이 정MM 명의 계좌 등을 통하여 이BB에게 전달된 사실 및 원고가 제출한 반증들만으로는 위 인정을 뒤집기 부족하므로, 이 사건 처분 중 본세 부과처분은 적법하다.

① If the Plaintiff intended to receive shares in its name for the purpose of actual ownership of the instant shares, it is not necessary to pay 2 billion won to B in advance, and it is a normal way to pay the FF Energy in the name of the Plaintiff when allocating the instant shares. As such, 2 billion won which the Plaintiff paid to B in advance is the money for another purpose or the money that the Plaintiff raised and delivered to B by B when acquiring FF Energy shares.

② The payment of new shares to the instant shares was made in the form of money borrowed in the name of D Development, where the BB had 80% equity shares and exercises actual management rights.

③ The actual repayment of the loan of this case between D and B was agreed between D and B to be responsible by B, and the pledge was established on OOO including the stocks of this case as a security for the loan of this case (i.e., it is reasonable to deem B, the actual borrower of the loan of this case, was the actual owner of the OOO, including the stocks of this case).

④ If the Plaintiff paid KRW 2 billion to the BB and actually owned the instant shares, it seems to be an example that the Plaintiff, a representative director under the name of DD development, provided the instant shares as a pledge, apart from that of joint and several sureties, or agreed to additionally repay the borrowed amount equivalent to KRW 2 billion with the instant shares.

⑤ From the door-to-door on August 19, 201, thisB confirmed that: (a) the money received from an account under the name of PE from the Plaintiff on April 4, 2007 to around May 5, 2007, from the KN, the privateP, etc., was received from the Plaintiff; (b) “B did not receive any money from the Plaintiff under the name of the Plaintiff; and (c) the security for the EE bank loans to three shares other than the FF interest; and (d) the remainder was sufficient to obtain stocks under the name of the privateA and make profits from the market price; (b) the outstanding profits from the instant shares were fully paid; (c) the principal of the loan was fully paid; and (d) the remainder was to be paid by the principal.

④ The Plaintiff issued the instant shares worth KRW 220 million to the BB upon the request of the BB, accompanied by the Plaintiff’s certificate of personal seal impression, to the sales contract, with respect to the purchase of the shares equivalent to KRW 220 million out of the instant shares. It is an example that the Plaintiff transferred the Plaintiff’s right to dispose of a part of his own shares acquired by his money to the BB without any consideration. It accords with the common sense that the said act is deemed that the actual owner of the instant shares is the BB and the Plaintiff was subject to the title trust.

7) The 200 million won remitted to the GN on November 1, 2007, which was confirmed to have been repaid to the GN with respect to the KRW 500 million remitted by the GN to the GN under the name of MM, is not consistent with the Plaintiff’s assertion that the said money was paid to the EN with respect to the said money as capital borrowed from the GN and paid to the EN as capital for capital increase.

① Since the SS, which received KRW 80 million from the Plaintiff, mainly takes charge of the AB Venture Fund Subscription Business, it is difficult to readily conclude that the said KRW 800 million was the acquisition price of the instant shares.

9) The instant disposition is made against the Plaintiff, and the gift tax is imposed on the gift accrued from the FF Energy Capital Increase issued by the Plaintiff, and both the Plaintiff and the BB were in a situation where the instant shares were deemed to be owned by the Plaintiff. Accordingly, the statement made by the Plaintiff and the relevant parties after the imposition of the said gift tax is lower credibility.

(10) There was no loan certificate between the Plaintiff and the BB regarding KRW 2 billion, and the Plaintiff did not take any measures to secure control over the instant shares in the course of establishing a pledge or establishing a sales contract on the instant shares.

㈏ 원고는 예비적으로 이 사건 주식을 원고 명의로 배정받은 것은 원고가 이BB에게 가지고 있던 채권에 대한 담보 목적이고, 이를 명의신탁으로 볼 수는 없다고 주장하는바, 이 사건 주식이 이BB의 소유임에도 원고 명의로 배정받은 원인이 채권 담보 목적이라는 사정은 이를 주장하는 원고가 입증하여야 할 것이다.

The following facts are revealed: (a) during the period from April 13, 2007 to May 14, 2007, the KN, privatePP’s funds were delivered to B; (b) around that time, the NN, privatePP’s funds were delivered to B; and (c) around that time, this case’s funds were used to pay interest on bonds, etc.; (d) however, according to the evidence and the overall purport of the arguments mentioned above, the Plaintiff and B have been engaged in money transactions for various purposes; (e) around April 13 to 5, 2007, there were financial transactions for the payment of the AB venture capital or the fund for capital increase with capital increase; (e) the KN and privateP’s funds were delivered to B without undergoing the Plaintiff; and (e) the KNN and privateP’s funds were funds raised by e.g., the Plaintiff’s funds, not the Plaintiff, and thus, it is difficult to deem the Plaintiff’s funds to be used as collateral payment for the Plaintiff’s funds.

4. Conclusion

Therefore, the part concerning the claim for cancellation of the OO part of the Disposition in this case is unlawful and dismissed, and the remainder of the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, it is to revise the judgment of the court of first instance as above, and it is so decided as per Disposition by the application of Article 32 of the Administrative Litigation Act with respect to the litigation costs as to the above rejection part