Donation of stock title trust

The disposition of deemed donation in view of whether the nominal stocks are suspected of tax avoidance;

207Guhap8271

○ Kim

○○ Head of tax office

March 19, 2008

April 16, 2008

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s imposition of gift tax of KRW 258,645,041 and penalty tax of KRW 103,458,01 and KRW 362,103,057 on March 7, 200 shall be revoked.

1. Details of the disposition;

A. On August 7, 2001, the representative director of the non-party ○○ Telecom Co., Ltd. (hereinafter referred to as the "the non-party ○○○,") acquired 41,817 shares of the non-party ○○ Telecom Co., Ltd. (hereinafter referred to as the "non-party ○○ Telecom") from the non-party ○○○○, Inc. (hereinafter referred to as the "the shares of this case"), under the name of the plaintiff, 41,817 shares of the non-party ○○ Telecom Co., Ltd. (hereinafter referred to as the "the shares of this case"), and sold them to ○○ on October 8, 2002

B. Accordingly, on March 7, 2007, the Defendant deemed that ○○ acquired the instant shares under the Plaintiff’s name as the title trust, and deemed that ○○○ donated the said shares to the Plaintiff pursuant to Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter “Inheritance Tax and Gift Tax Act”), and imposed the gift tax and penalty tax stated in the claim on the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2, Gap evidence 5, Gap evidence 7-1, 2, Eul evidence 1, 4, and the purport of the whole pleadings

2. Related statutes;

A. The plaintiff's assertion

(1) Since high ○○ acquired the instant shares by stealing the Plaintiff’s name regardless of the Plaintiff’s intent, the Defendant’s disposition, which applied the provision on deemed donation under the premise that there was an agreement on title trust between the Plaintiff and high ○○○, was unlawful.

(2) Although high ○○ entered into an investment attraction agreement with large investors to register ○○ Telecom at the KOSDAQ market, it was impossible to register ○○ Telecom at the KOSDAQ market until December 31, 2001, which is the term of such agreement, and thus, it was intended to register ○○ Telecom at the KOSDAQ market by means of a merger with the non-party company registered at the KOSDAQ market, and thus, only acquired the stocks of the non-party company and title trust the Plaintiff, etc. with the intent to avoid taxes through title trust, and thus, the Defendant’s disposition of this case, which was made by applying the provision on the deemed donation, was unlawful.

(3) If the right to collect the national tax is not exercised for five years, the right to collect the national tax expires by prescription. The instant disposition was unlawful since it was conducted on March 5, 2007 after the lapse of five years and seven months from August 7, 2001 on the title trust to the Plaintiff.

B. Determination

(1) Whether title trust of the instant shares was held

In full view of the purport of the arguments in the evidence Nos. 10-1, 2, 3, and 11-5, 6, 7, and 3-1-2 of the evidence Nos. 10-1, 3-2, the plaintiff directly obtained a loan of KRW 8.5 million, which is a part of the purchase price of shares of the non-party company in his name, from ○○○○ upon the request of ○○○○○○○○○○○○○○○○○○○’s request, and made a statement to the effect that the plaintiff consented to the acquisition of shares of this case in ○○○○○○○○○’s name. Since the plaintiff also stated that ○○○○○○○○○○○○○○’s consent was insufficient solely on the ground that ○○○○○○○’s consent was insufficient to purchase shares of this case under the name of ○○○○○○○’s own account, the plaintiff’s assertion that he purchased shares of this case and the above shares was insufficient.

(2) Whether there was no tax avoidance purpose in the instant title trust

The legislative purport of Article 41-2(1) of the Inheritance Tax and Gift Tax Act is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance by using the title trust system is effectively prevented, and thus, it is possible to apply the proviso of the same Article only where the purpose of tax avoidance is not included in the purpose of the title trust, and the burden of proving that there was no purpose of tax avoidance in the title trust exists. Therefore, for the fact that there was no purpose of tax avoidance, it may be proven by means of proving that there was a purpose other than the purpose of tax avoidance. However, as the nominal owner who bears the burden of proving the burden of proof, there was an obvious purpose irrelevant to the tax avoidance in the title trust, to the extent that there was no purpose of tax avoidance in the title trust, and the fact that there was no tax avoidance at the time of the title trust or in the future has to be proved to the extent that it would not have any doubt (see, e.g., Supreme Court Decisions 2004Du1421, Jun. 11, 2004>

Therefore, considering the following facts: (a) ○○○○○○○ Company’s acquisition of shares under the name of the Plaintiff’s ○○○○○○○○○○○○ Company’s 00 shares was difficult to be determined on the grounds that the acquisition of the shares by Nonparty 1 and Nonparty 2 did not have any purpose to avoid taxes; (b) 1, 2, 3, and 3 of the No. 12; (c) the acquisition of shares under the name of the Plaintiff’s 1 and Nonparty 6’s 00 shares was difficult to be determined on the grounds that the acquisition of shares by Nonparty 1 and Nonparty 6’s acquisition of the shares was not the first 7-year-old shares for the purpose of the acquisition of the shares under the name of ○○○○○○○○○○○○○○○ Company’s 00 shares; and (d) the acquisition of shares under the name of the Plaintiff’s 6-year-old shares for the purpose of the acquisition of the shares by Nonparty 1 and Nonparty 2’s shares.

(3) Whether the instant disposition constitutes a disposition after the expiration of the statute of limitations

According to Article 26-2 of the Framework Act on National Taxes, the exclusion period of the imposition of the gift tax is ten years, and the defendant issued the instant disposition on March 7, 2007, where ○○○ had not passed since August 7, 2001 when 10 years had yet to elapse since the title trust of the shares of this case to the plaintiff. Meanwhile, according to the statement on the evidence No. 1, the payment period based on the notice of the gift tax of this case was March 31, 2007, and the extinctive prescription of the right to collect the gift tax of this case has run from April 1, 2007, since the imposition of the gift tax of this case was conducted before the expiration of the exclusion period, and it cannot be said that the extinctive prescription of the right to collect the gift tax of this case has expired, and therefore,

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.

Judges lower than the presiding judge:

Judge fixed-line

Judges Lee Do-hun