Seoul Administrative Court 2008Guhap1051 ( December 17, 2008)

Examination Other 2007-045 ( December 18, 2007)

Whether shares are held in title trust or not

In full view of the fact that the title truster was not aware of the trustee personally, and that there was no economic incentive to acquire shares, as well as there was no intention to acquire shares, it is difficult to regard the title truster as the title truster.

1. All appeals by the Defendants are dismissed.

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

1. Purport of claim

The imposition of gift tax of KRW 5,79,500,000 on August 23, 2007 by the head of the defendant GG Tax Office against the plaintiff on August 23, 2007, and the imposition of KRW 4,454,43,530 on August 28, 2007 by the head of the defendant BB Tax Office against the plaintiff on August 28, 2007, and the imposition of KRW 4,454,443,530 on corporate tax of the non-party FF industry corporation for the business year of 2003, and the notification of changes in income amount of KRW 10,125,

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendant is dismissed.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry in Gap evidence Nos. 1, 2-1 through 4, 3, 15, and 1-1, 1-2:

A. On December 28, 2003, the Plaintiff acquired shares of a friendly comprehensive construction company and became an oligopolistic shareholder. On December 28, 2003, the Plaintiff changed its trade name to DD Construction Co., Ltd. (hereinafter referred to as "DD Construction"), is currently in charge of its representative director, and it actually operates AAADDD Co., Ltd (hereinafter referred to as "AADD") established on March 17, 2003 for the purpose of newly building and selling an apartment-type factory.

B. On April 25, 2003, 5, including the largestCC, which is a shareholder of the FF Industry Co., Ltd. (hereinafter “FF industry”), entered into a contract with a purchaser on the transfer of the entire shares issued in the FF industry (hereinafter “instant shares”) of the purchase price of KRW 9,205,00,000. On April 30, 2003, the transfer of ownership was completed in the name of FFE at the same time as the balance is paid.

C. On April 30, 2003, the FF industry sold the instant land to AADD by setting the purchase price of KRW 10,125,500,000,000, which is owned by it, for the PPD 197-10, Seoul, PPdong 197-10,000 (hereinafter “instant land”). On the same day, the FD had completed the registration of ownership transfer in the name of AAD in relation to the instant land.

D. The FF industry did not reflect the matters relating to the sale and purchase of the instant land at the time of the corporate tax return in 2003.

E. After the Plaintiff acquired the instant shares under the name of ParkE, the Defendants: (a) premised on the fact that the instant land owned by the F Industry was paid to the leastCC, etc. with the funds sold to AAD; (b) Defendant GG head of the tax office, on August 23, 2007, deemed the Plaintiff as donation pursuant to Article 45-2(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “Inheritance Tax and Gift Tax Act”); and (c) designated the Plaintiff as a joint taxpayer pursuant to Article 4(4) of the Inheritance Tax and Gift Tax Act and issued a tax notice of KRW 5,79,500,000 as bonus for the year 200, and (b) Defendant BB head of the tax office, on the ground that the FG head of the tax office did not report and pay the instant shares to the Plaintiff for the reason that the change in corporate tax and corporate tax of 30,007.

2. Whether the instant disposition is lawful

A. The plaintiff's principal

1) The ParkE, which is called the trustee of the shares of this case, is deemed to be unlawful inasmuch as the Defendants agreed to, or consented to, acquire the shares of this case under their own name. In a case where the name of the nominal owner is used arbitrarily regardless of the intent of the nominal owner, the pertinent disposition is unlawful, since the provision on deemed donation under Article 45-2(1) of the Inheritance Tax and Gift Tax Act is not applicable.

2) The Plaintiff did not have a title trust relationship with the Park E as to the instant shares, and even if there exists a title trust relationship, even if there exists a title trust relationship, the instant disposition based on the premise that the Plaintiff, who actually controlled the FF industry, such as acquiring the instant shares and selling the instant land, accounts for the gains from transfer, managing the corporate passbook in the FF industry, and making a decision on the discontinuance of the business, is a title truster. Therefore, the instant disposition based on the premise that the Plaintiff trusted the instant shares with the ParkE

Even if HoH is not a title truster, the funds used for the acquisition of the instant shares and the purchase of the instant land were made from AAADD, not the Plaintiff, and as long as AADD becomes the subject of AADD and purchased the instant land, the disposition of this case is unlawful since AADD, not the Plaintiff, should be the title truster.

3) The instant disposition is unlawful, given that the Plaintiff did not enter the F Industry’s shareholder registry as a shareholder, and does not constitute an oligopolistic shareholder whose secondary liability for tax payment was imposed on the Plaintiff since it did not actually exercise the rights as a shareholder.

(b) Related statutes;

It is the same as the entry in the attached statutes.

(c) Fact of recognition;

The following facts are as follows: Gap evidence 1, Gap evidence 12 through 24 (including various numbers), Gap evidence 33 through 37, Gap evidence 42, 43, 44, 48, 56 through 60, Eul evidence 3 through 6, 12, and 13, Gap evidence 8, 49, 50, 52, and 55 evidence 2, Eul evidence 2 (excluding the part which is not trusted later), Gap evidence 1, Eul evidence 3 through 37, Eul evidence 42, 45, Eul evidence 3 through 6, 12, 13, Eul evidence 3 through 6, 12, 13, Eul evidence 3 through 6, Eul evidence 4, Eul evidence 57, 54, 50, 57, 57, and 81 evidence 5, evidence 1 of the court below's judgment below's evidence 9, 10, 47, 57, 50, 5-1 of the witness evidence 5.

1) Relationship between the parties

(A) He was employed as a tax official from around 1976, and was promoted to a Grade 5 official around September 2005, and then retired from office around August 2007, and KimK became aware of the H while serving as a tax official from around 1979, and around December 2000, YE is a certified tax accountant who retired and served as a tax official and was represented by the Plaintiff’s tax affairs.

(B) On April 25, 2003, immediately after the establishment of AADD, the Plaintiff owned 60% of the outstanding shares on the shareholder registry as of April 25, 2003, respectively, 20% of the remainder by the Plaintiff’s wife order and the representative director’s actual directors, respectively.

2) Particulars concerning the acquisition of the land in this case

(A) From December 2002, the Plaintiff intended to purchase the instant land from around December 2002 to secure a new apartment-type factory site. However, the Plaintiff proposed to acquire the F industry itself while refusing to transfer only the instant land on the ground that the instant land is imposed a corporate tax amounting to approximately KRW 2.6 billion upon the transfer of the instant land under the name of the F industry by the LF industry, which was the representative director and the major shareholder of the FF industry, on the grounds that the instant land was transferred in the FF industry. However, the Plaintiff did not intend to take over the FF industry or to additionally bear an amount equivalent to the said corporate tax, while the Plaintiff was unable to secure the instant land, as it was working as a tax official at the time of February 3, 2003, as proposed by the HH and the following agreement (hereinafter “instant agreement”).

(B) The content of the instant arrangement is as follows: (a) the F industry takes over the F industry by taking over the entire stocks of the instant case by a third party colored by UNH; and (b) the F industry transfers the instant land to AADD to be established by the Plaintiff for the implementation of the said apartment-type factory construction and sales project; (b) AAADD pays an amount equivalent to 110% of the acquisition price of the shares determined by the Plaintiff, as the purchase price of the instant land, to the shareholders of the FF industry, such as the largestCC, and the shareholders of the instant FF industry and the shareholders of the instant stock, who met the conditions on the transfer of the instant stocks; and (c) the issue of corporate tax following the acquisition of the F industry and the transfer of the instant land, under his responsibility, HH takes over the purchase price of the instant land, and

(C) Accordingly, the Plaintiff established AADD on March 17, 2003, and proposed that the FFD will take over all the shares of the FF industry. On several occasions, the terms and conditions of the share transfer contract continued to be satisfied with respect to the price for delivery and the timing and method of payment, etc., and the HH requested that the FFD lend its name without notifying the FE, which was in a bad credit position due to his/her type of sale, and issued a certificate of personal seal impression and seal impression necessary for the FF industry acquisition and the sale of the instant land, with the letter of delegation in the name of HE.

(D) On April 25, 2003, KimK entered into a provisional contract with DoD Construction Office located in the Dong, Yeongdeungpo-gu, Seoul, to purchase 9,205,00,000 won (hereinafter “instant stock transfer contract”) total stocks of the FF industry owned by 5 persons, such as the largestCC, from the DoD Construction Office, and at the same time between the Plaintiff and the Plaintiff who represented AAADD, to sell the instant land to AAD in KRW 10,125,50,000 (this is equivalent to 110% of the price of the instant stock transfer), while receiving from the Plaintiff a delivery of KRW 920,50,000 as a provisional contract deposit and paying it to CC as a down payment.

(마) 김KK는 2003. 4. 30. DDD건설 사무실에서 AAADDD를 대리한 원고와 사이에, 이 사건 토지에 관한 매매계약(이하 '이 사건 토지 매매계약'이라 한다)을 체결하고, 원고로부터 그날 지급받기로 하였던 중도금 8,284,500,000원 중 5,284,333,152원의 수표를 전달받아 그 자리에서 최CC에게 주식양도 잔금의 일부로서 지급하였고, 나머지 중도금 3,000,166,848원은 AAADDD의 계좌에서 최CC가 대표이사로 있는 QQ운수 주식회사의 은행계좌로 이체되었다.

(F) On April 30, 2003, the executive officers of the largestCC and FF industries resigned and retired from office on April 30, 2003, and ParkE was registered in the FF industry’s corporate register as a director on the same day. On the same day, the FF industry entered the ownership transfer registration in the name of AADAD in the future, followed the Korea Land Trust Co., Ltd. (hereinafter “Korea Land Trust”) (hereinafter “Korea Land Trust”), and the trust registration was completed in succession (the "person supplied" on the tax invoice issued by a certified judicial scrivener who entrusted the affairs related to the registration of the said corporation, the transfer of ownership, and the cancellation of mortgage on the instant land).

(G) ADADD borrowed KRW 1,70,000,000 as security under the joint and several guarantee of DD Construction on April 30, 2003, under the mutual guarantee of DD Construction, a trustee of the instant land. ② On April 30, 2003, ADAD borrowed KRW 3,100,000 as security the certificate of beneficial interest for the issuance of the instant land trust, a trustee of the instant land, under the joint and several guarantee of DD Construction. ③ on April 30, 2003, ADAD borrowed KRW 2,00,000,000,000, as a security, from the Insung Mutual Savings Bank as a trustee of the instant land, under the joint and several guarantee of DD Construction. Meanwhile, on April 30, 2003, it borrowed KRW 4,58,500,500,000 from DD Construction.

(h) AADD deposited KRW 920,50,000 on June 26, 200 to the bank account of the FF industry. From around July 2003, KimK deposited KRW 100,000 at face value and KRW 90,000 at face value and delivered to PH. From around August 2003, HH deposited KRW 400,000 at its own principal and KRW 00,000 at KRW 80,000,000 each month thereafter, and deposited KRW 00,000 at KRW 80,000,000 for principal and KRW 200,000,000 for principal and KRW 200,000 for 80,000,000 for 00,000,000 for 80,000,000 for 200,000,000 for 300,000,00.

(iii) criminal cases against Kim KK and Park E;

Kim K-K and Park Jong-E embezzled KRW 10,125,500,00 which was paid by the FF industry from AAD to the purchase price of the instant land in collusion with the Plaintiff and UHD, by either paying the purchase price of the instant land as the purchase price of the instant shares or delivering it to UH. In filing a corporate tax return for the business year 2003 of the FF industry, the FF industry did not report the sale of the instant land, and the FF industry did not withdraw the entire purchase price of the instant land deposited by the corporate passbook in the F industry and distributed the FF industry to the next account and discontinue the FF industry. The judgment of 2,674,698,981 was charged on suspicion, and the Seoul Central District Court was found guilty on June 27, 2008, and thus dismissed the said judgment of 20 years and six years, 4 years of suspended execution, Kim Jong-E was not found to have been acquitted, but there was no evidence to acknowledge that the said judgment of 2000 years and H was found guilty under its name.

(iv) Other

(A) On May 27, 2003, AADAD entered into a construction contract for the construction of apartment-type factories on the instant land with DD Construction. At that time, AADAD started construction after obtaining a construction permit and obtained approval for the use of the building completed on September 8, 2004, and sold the above apartment-type factories in the name of AADADD. On the other hand, ADAD sold the instant apartment-type factories in the name of ADAD. With regard to the sale of the instant land, 50,000,000 won shall be paid to KimK for the purchase and sale of the instant light of the transfer of the instant stocks, and

(B) On February 26, 2004 at the Hah H’s request, Kim K transferred from 197-10, the FF industry’s domicile to 208, Seoul, Gangnam-gu, which is the location of the pertinent land, to 'TT Dong 208, which is the location of the building owned by her own city. On March 31, 2004, while acting for the final return and payment of the F industry’s corporate tax in 2003, the FF industry sold the instant land to AAADD and the fact that the F industry received full payment of the purchase price was omitted.

(C) The FF industry was reported on May 2004 and was dissolved as of December 1, 2009.

(D) On April 21, 2008, while having been under investigation by the prosecution due to the above criminal case, H escaped to a foreign country. On May 16, 2008, the prosecutor of the Seoul Central District Prosecutor’s Office rendered a decision of suspension of witness on the ground that he was missing as a superior suspect against the Plaintiff.

D. Determination

1) The existence of the title trust relationship

As seen earlier, ParkE issued a seal imprint and a certificate of seal impression to Hah, Hanam, but did not participate in the process of transferring the instant shares and selling the instant land, and was unaware of the specific contents of the instant share transfer agreement, and did not bear all the cost of acquiring the instant shares. In light of the circumstances, ParkE cannot be deemed as the actual owner of the instant shares acquired through the instant share transfer agreement.

However, according to the above evidence (in particular, evidence Nos. 43, 48, and 49) that was adopted as above, ParkE issued a seal imprint certificate and a certificate of seal impression without specifying the purpose of its use upon request to lend his name even if he was unable to hear the specific purpose of use from He, and issued a seal imprint certificate and a certificate of seal impression. When ParkE's agent went to the registry office to change an officer of the F industry in the investigation agency and the court of the party concerned, KimK stated that Park E was required to have a representative director's attendance and had a representative director's presence, and Park E also stated that ParkE had a man in a registry to build documents requested by HeH at the investigation agency, and that ParkE received 5,000,000 won from He in return for lending the above name, and that it was reasonable to view that ParkE acquired the right of the PH's name or the right of the PH's expression of intent under the title of this case with respect to the real name of the PH in advance.

Therefore, the Plaintiff’s assertion that Article 45-2(1) of the Inheritance Tax and Gift Tax Act cannot be applied to the acquisition of shares of this case on the premise that the title of Park E-E was stolen regardless of his/her will is stolen is without merit.

2) Whether the Plaintiff is a title truster of the shares in the instant case

(A) In full view of the following circumstances as to who is the title truster of the instant shares, the Plaintiff and the UH first is the title truster of the instant shares, the evidence adopted earlier, and the entire purport of the pleadings, and the following circumstances, the UH is deemed the title truster.

① The title trust relationship between the parties is established when the truster reserves ownership in the internal relationship between the parties, and the trustee agrees to conduct as a full owner in the external relationship, and the object of the title trust is not necessarily established when it is acquired from the truster’s capital (see Supreme Court Decision 2007Da69148, 69155, Feb. 14, 2008).

However, at the time of the transfer of the instant shares and the sale of the instant land, the Plaintiff did not know the ParkE individually, but did not have any factual background, and even according to the Defendant’s all proof, there is no direct evidence that the agreement on title trust was concluded between the Plaintiff and ParkE.

② Therefore, the title truster of the instant shares can clarify the underlying relationship or substance relationship of the acquisition of the instant shares by GaE (see, e.g., Supreme Court Decision 2007Da27755, Sept. 6, 2007). According to the above facts, the agreement on stock transfer and the acquisition of the shareholder’s name of GaE under the agreement was performed as a result of the implementation of the instant agreement between the Plaintiff and HaH. As such, the title truster should make a decision by comprehensively taking into account the content of the instant agreement, the motive and background leading up to the agreement, the purpose and genuine intent of the parties to the instant agreement, etc.

③ The purpose of the Plaintiff’s conclusion of the instant agreement was to enable AADD to acquire the instant land without bearing the amount equivalent to the corporate tax to be imposed on the FF industry with respect to the transfer of the instant land on the instant land (in the event the real estate owner refuses to transfer due to the burden of capital gains tax, it is not rare that the transaction would produce the conditions equivalent to the capital gains tax on the transaction by the transferee if the transferee refuses to transfer the instant land). To achieve this purpose, the issue of the acquisition of the instant stocks and the corporate tax to be imposed on the FF industry upon the transfer of the instant land was dealt with under his responsibility by HH, and thereby, to pay the amount equivalent to 10% of the capital gains tax on the instant land to AADD and the Plaintiff in return for avoiding economic burden and risk. In light of the fact that the Plaintiff agreed that the Plaintiff did not have any intent to acquire the instant stocks.

④ At the same time, HH made the nominal holder acquire the instant stocks by using the nominal name name, and at the same time made the nominal holder transfer the instant land to AAD as the representative director of the F industry, and subsequently, the amount equivalent to the corporate tax on such transfer shall be evaded by using his/her position as his/her own tax official or closing the F industry at an appropriate time, and as long as he/she agreed to acquire the price for the acquisition and transfer of the instant stocks and the corporate tax on the transfer of the instant land, etc. at its own responsibility, it is reasonable to deem that he/she had an intention to acquire the instant stocks on the ground of the nominal holder and to bear the risks therefrom.

⑤ In fact, H had Kim K manage the passbook of the F industry from the date immediately after the instant share transfer contract and the instant land sales contract were concluded to the closure of the F industry, and had Kim K transfer the company’s address or report corporate tax, and there is no evidence to prove that the Plaintiff participated in the F industry.

④ AAADDDD or its representative director acting on behalf of AAADD or its representative director as the largest shareholder of AAADD, on the other hand, to determine the terms and conditions of the instant stock transfer agreement between the Plaintiff and the MaximumCC that represented the shareholders of the FF industry.

The Defendant asserts that the maximumCC representing the transferor as the Plaintiff was aware of the transaction partner as the Plaintiff, and that part of the MaximumCC’s statement (Evidence Nos. 4, 5, and testimony at the trial court) was consistent with this. However, on May 21, 2007, when the MaximumCC was investigated for the first time due to the stock transfer relation from the BB tax office of this case, it was aware that the transferee of this case was a DD Construction, and the receipt of the transfer price is important from the standpoint of the stock transferor, and the transferee was not an important part of the transferee. Thus, in light of the statement (Evidence No. 3), it is doubtful whether the MaximumCC was actually aware of the Plaintiff as the transferee at the time of the stock transfer contract of this case, and there is no evidence to acknowledge that the Plaintiff was the transferee of this case, and there is no reason to prove otherwise.

7) It seems clear for the Plaintiff to have conspiredd and participated in the act of embezzlement and corporate tax evasion pursuant to the instant agreement. However, it is difficult to view that the Plaintiff acquired the instant shares or controlled and managed the FF industry as an anti-social legal act in light of the illegality of its purpose (Although there is no room to regard the instant agreement as null and void in light of the illegality of its purpose, there is no evidence to acknowledge that the previous shareholders of the FF industry, such as the largestCC, were involved in the instant agreement, or were aware of the fact that the instant agreement was concluded as implementing the instant agreement, the validity of the instant share transfer agreement cannot be denied on the ground that the instant agreement was null and void, and the instant disposition also based on the same premise).

(B) Even if UH is not a title truster, in full view of the following circumstances revealed by the above facts, AADD, other than the Plaintiff, shall be the title truster.

(8) If a person who intends to acquire shares acquires shares under another person's name while he/she bears the acquisition price in accordance with an agreement with another person, the title trust relationship between the nominal person and the person who bears the acquisition price shall be established unless there are special circumstances (see Supreme Court Decision 2008Da62687, Nov. 27, 2008). The funds used for the acquisition of shares of this case shall be borne by AAD, not by the Plaintiff but by the Plaintiff.

9) The acquisition of the instant shares was made by AADD to acquire the instant land necessary for the implementation of the intended project, and AADD acquired the instant land and performed the intended project. In the process, the Plaintiff, as the largest shareholder and the management owner, acted on behalf of the AADD or its representative director.

(10) The defendant asserts that AAADD is a company under the control of the plaintiff, and its legal personality is abused as a means to avoid the application of the law to the plaintiff behind it, and thus, it should be held liable for the ownership of the shares of this case to the plaintiff behind it as a substantial controller. However, the fact that AAADD acquired the land of this case and implemented it as the subject of the new apartment-type factory construction and sale on the ground after it became the subject of the apartment-type factory construction and sale on the ground is as seen above. Accordingly, the above transaction subject is an individual of the plaintiff, and the AADDD is merely the subject of the business, and there is no evidence to acknowledge that it is merely the

3) Therefore, the instant disposition, based on the premise that the Plaintiff, as the actual owner of the instant shares, held a title trust with Park E-E, should be revoked as it is unlawful without examining the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just in conclusion, and all appeals by the defendants are dismissed. It is so decided as per Disposition.