Seoul Administrative Court-2015-Gu Partnership-5336 ( August 10, 2017)

the shares originally held in title trust shall not be donated to shares, but shall be reinstated;

Since the authenticity of a deed signed by a private person and the lawsuit seeking confirmation of a shareholder's right were dismissed, the facts were owned by the plaintiffs, regardless of the shareholder's name, and were returned to the name of the plaintiffs through a change of name.

Article 2(3) of the Inheritance Tax and Gift Tax Act

2017Nu6738 Revocation of Disposition of Imposition of Gift Tax

AA and 1

Head of △ District Office

April 24, 2018

May 29, 2018

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of gift tax of KRW 2,875,445,790 against Plaintiff A on June 3, 2013 and the imposition of gift tax of KRW 8,793,228,370 (including additional tax) against Plaintiff BB shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition, the allegations by the parties, and facts of recognition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance except for the following additions or modifications. Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ The following shall be added to the 7th written judgment of the first instance court:

In this regard, the AA and BB prepared a report on the completion of stock changes (Evidence B) with the same assertion as the time of the initial investigation, but they failed to submit particular evidence, and there is no reason to believe that the initial investigation is unjustifiable, as in the initial investigation, and the report on the completion of re-investigation (Evidence B, No. 18); and

○ Following the 3rd judgment of the first instance court, the 5th "Nos. 1 and 2 (including each number)" shall be written "Nos. 1, 2, and 18 (including each number)".

○ The following shall be added below the fourth decision of the first instance.

In addition, even though the Tax Tribunal rendered a re-audit decision on September 2, 2014 to the effect that it will re-examine who is the owner of the shares in this case and determine the tax base and tax amount according to the result, the defendant issued the disposition in this case to the same effect as that of the previous case without a substantive re-audit, and thus

○ Following the fourth decision of the first instance court, the first instance court's "it is difficult to recognize its authenticity as it is," and the first instance court's "it is not presumed that it has been duly formed since it did not go through the procedures under the Notary Public Act."

○ Following the 11th judgment of the first instance court, the appellate court (Seoul Eastern District Court 2017Na20908) " was sentenced, and all appeals and appeals have been dismissed and finalized (Seoul East Eastern District Court 2017Na20908 and Supreme Court 2017Da294691)."

○ In the first instance judgment, the letter of "No. 32" of the 7th instance judgment shall be written with "No. 34" below the 12th instance judgment.

2. Whether the instant disposition is lawful

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. Determination

1) Relevant legal principles

A) Article 2(1) of the former Inheritance Tax and Gift Tax Act provides that gift tax shall be imposed on the donated property by another person’s donation. Article 2(3) of the former Inheritance Tax and Gift Tax Act provides that “The term “donation” includes any tangible or intangible property (including a case of transferring at a remarkably low price) in which economic values can be calculated, directly or indirectly, to another person or an increase in the value of another person’s property by means of contribution.” Article 31(1) of the former Inheritance Tax and Gift Tax Act provides that “The donated property under Article 2 of the former Inheritance Tax and Gift Tax Act includes any property belonging to the donee and all goods having economic value that can be realized into money and all de facto or de facto rights having property value.”

The former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) does not stipulate any unique definition on the concept of "donations", but borrows the concept of "donations under the Civil Act, and expresses an intention to grant property to the other party without compensation by the other party, and the other party approves it, and imposes a gift tax on the gratuitous transfer of property which is not in accordance with a contract between the parties, by separately preparing and imposing a provision on the legal fiction of donation (Articles 32 through 42). As a result, in the case of gratuitous transfer of property by means of a new financial method or capital transaction, etc. which is not listed in the regulations on the legal fiction of donation, there was a limit to block the transfer of property without any appropriate tax-free division.

Therefore, in order to realize fair taxation, the Inheritance Tax and Gift Tax Act amended by Act No. 7010 on December 30, 2003, which was amended by Act No. 7010 on December 30, 2003, comprehensively defined the subject of gift tax, including the concept of donation, and the "increased transfer of property directly and indirectly without compensation" as well as the "increased increase of property value by another person" as a whole defined the subject of gift tax including the concept of donation, and introduced the so-called comprehensive taxation system of complete taxation of gift tax by converting the previous listed provisions into the provisions on the timing of donation and calculation of the value of property (hereinafter referred to as "the provision on calculation of value").

In light of the fact that the concept of comprehensive gift under tax-related Acts is introduced in order to cope with the changing inheritance and donation in advance, and that the previous provision on deemed donation is uniformly converted into the value calculation provision, in principle, where certain transactions and acts constitute the concept of gift under Article 2(3) of the Act, gift tax may be imposed pursuant to Article 2(1) of the Act (see, e.g., Supreme Court Decision 2013Du13266, Oct. 15, 2015).

B) The fact of ownership of shares is to be proved by the tax authority’s data, such as the list of shareholders, the statement of stock transfer or the register of corporate register, etc. However, even in cases where a shareholder appears to be a single shareholder in light of the above data, where there are circumstances, such as where a shareholder’s name was stolen or registered in a name other than the real owner’s name, the actual owner shall not be deemed to be a shareholder, but it shall be proved by a person who asserts that he/she is not a shareholder (see, e.g., Supreme Court Decision 2003Du161

2) Whether the authenticity of each of the instant certificates is recognized

A) The authentication system for a deed signed by a private person provided for in the Notary Public Act is presumed to have been duly formed by a notary public, barring special circumstances, such as where the notary public proves that the notary public did not properly go through the authentication of a deed signed by a private person in the presence of a notary public, or that the party has made the party concerned sign or affix a seal on the deed signed by a private person or his/her agent, and then has the party concerned or his/her agent confirm the signature or affix a seal on the deed signed by a private person, and that it is written in the deed by a notary public and it is stipulated in advance as the authentication of a deed signed by a notary public pursuant to the Notary Public Act, and that the notary public necessarily requires the procedure for confirmation of the client, confirmation of his/her agent, and certification of his/her authority

B) Of the instant written confirmations, the confirmations written in the name GG and CCC by a notary public in the Dong-dong Legal Office △△△△△△, the confirmations written in the name of DD and JJ were recognized by a notary public in the name of △△ Law Firm, and the verifications written in the name of EE was awarded by a notary public in the EE-Dong Legal Office. Unless there are special circumstances, it is presumed that the authenticity of the said confirmations written by the said notary public is established, barring special circumstances, such as where the said notary public proves that the said authentications did not go through the procedures for verifying the clients or their clients and verifying their authority of representation, etc. under the Notary Law

C) On this issue, the Defendant asserts that each confirmation document of this case does not have a power of representation attached, and that the confirmation document of EE is accompanied only by a certificate of personal seal impression, not for the purpose of notarial act of stock title trust, and that the confirmation document of DD and JJ does not have a specific certificate of personal seal impression attached, and that the confirmation document of JJ does not contain a statement that a notary public has confirmed his power of representation. Thus, the procedure for certification of the confirmation document of this case violates Article 31 of the Notary Public Act and thus the presumption of the authenticity of each confirmation document of this case is broken.

Article 31 of the Notary Public Act provides that when a notary public certifies a deed signed by a private person upon the commission of an agent, he/she shall require the agent to submit a certificate of the personal seal impression or a certificate of signature and to prove that the deed is authentic. The confirmation letter in the name GG, CCC, EE, and DD states that the right of representation is recognized by his/her power of attorney and by his/her certificate of the personal seal impression. The confirmation letter in the name GG and CCC contains a certificate of the personal seal impression for stock title trust certificate. The verification letter in the name GG and CCC is accompanied by a certificate of the personal seal impression that has no purpose of use, and there is no other evidence to prove that the notary public does not properly go through the procedures for confirmation, confirmation by the client, his/her agent, and certification of the right of representation. On the other hand, the confirmation letter in the name of JF which the FF received by a notary public on behalf of the eF does not include the phrase of the certificate of the personal seal impression, and thus, the testimony or completion of the testimony by the FJ is recognized by each of the testimony.

In addition, the defendant asserts that the confirmation procedure of this case violates Article 12 of the Enforcement Decree of the Notary Public Act because the confirmation document of this case includes the confirmation that the person in question is the person in question who owns the shares of this case as his agent, and thus it is doubtful that the authentication procedure of this case is likely to affect the relation of rights by the notary public. However, since there is no proof that the notary public did not demand an explanation on the circumstances suspected of doubt about the relation of rights at the time of the authentication of each of the certificates of this case, each of the certificates of this case is

Therefore, this part of the defendant's assertion is groundless.

3) Whether to recognize title trust of the instant shares

In recognition of the authenticity of each of the instant certificates, and in full view of the following circumstances recognized by the facts as above, it is reasonable to deem that the instant shares are owned by EE, etc. and it is difficult to deem that they are owned by the Plaintiffs, and that they are nominal trust to EE, etc., and that they were returned to the Plaintiffs.

A) According to the letter of confirmation issued in the name of GG and CCC, the title truster of the shares in his name is this HH. However, it is difficult to view HH as the title truster because he stated that HH was not aware of the ownership relationship, and that HH was not a title truster. AA claims that HA’s act of having HH as the title truster is due to the need for share distribution. However, the need seems to exist.

B) The confirmation of the JJ’s name is the content that the title trustor of the shares under the JJ is FF, and FF states that the said shares were donated to BB by the network DD to the BB, and that the actual owner is the Plaintiff BB. According to the confirmation of DD and EE, the shares in the EE name are the shares that the DD donated to the Plaintiff BB.

C) The trade name of the non-party company was in accordance with the subparagraph (h) of the Plaintiff AA, and the Plaintiff AA was in the position of representative director from the time of the establishment of the non-party company to the date of the establishment of the non-party company. EE, etc. did not participate in the operation of the Defendant company, nor did it exercise the shareholder right, such as

라) 소외 회사의 설립에 관하여 DDD의 자금이 상당히 투입된 것으로 보이고, 제1심 증인 KKK, FFF 역시 DDD이 소외 회사를 설립하였다고 진술하기는 하였으나, 한편 DDD은 자신이 설립한 ♡♡콘크리트의 대표이사를 EEE으로 변경하여 현재까지 EEE이 실질적 경영자로서 영산콘크리트를 경영하도록 하였고, CCC은 사회복지재단 ◁◁복지재단의 대표이사로 재직하도록 하고 있는 반면, 장남인 원고 AAA에게는 소외 회사의 최대주주의 지위 및 소외 회사의 경영권을 물려주려는 의사였다고 보이고, KKK도 이에 부합하는 증언을 하고 있다.

E) EE, etc. filed a lawsuit against the Plaintiffs and non-party companies, such as confirmation of the shareholders’ rights of the instant shares, and the judgment dismissing all claims of EE, etc. on the ground that EE, etc. is difficult to recognize the actual owners of the instant shares, became final and conclusive.

4) Sub-determination

Therefore, the instant shares were not donated to the Plaintiffs from EE, etc., but were trusted in title to EE, etc., and thus, the disposition of the instant shares was unlawful on a different premise (the Defendant asserted that the instant shares were donated to the Plaintiffs from other co-inheritors by the portion exceeding the legal portion of inheritance of the Plaintiffs on the date of change of name of the instant shares, which was jointly inherited to the inheritors, on the other hand, due to the death of DD, which owned the instant shares. However, it is insufficient to recognize that the non-party company owned the instant shares by the time of death of DD, in addition to the fact that DD was established with the funds of DD, and there is no other evidence to prove that the Defendant’s conjunctive assertion was not reasonable).

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked.