Appropriateness of taxation of gift tax by deemed donation of stock trust

In full view of the purpose of title trust, existence of tax to be avoided due to title trust, etc., the purpose of title trust is to avoid administrative regulations, such as reporting to the Financial Supervisory Commission, and it is reasonable to deem that there was no tax avoidance purpose at the time of the above title trust. Therefore, this disposition is unlawful.

Article 41-2 (Presumption of Donation of Title Trust Property)

1. Revocation of a judgment of the first instance;

2. The defendant's disposition of imposition of gift tax of KRW 544,047,840 against the plaintiff on February 7, 2005 shall be revoked.

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

The text of the gift tax is as follows (the "Gift 544,047,040 won" seems to be a clerical error in the "Gift 544,047,840 won".

1. Details of the disposition;

A. From July 2, 2004 to August 26, 2004, the commissioner of the regional tax office found the fact that the representative director of the OF acquired and held 90,000 shares of the OF under the name of the plaintiff on December 8, 2001 (hereinafter referred to as the "the shares of this case") and notified the defendant as taxation data.

B. Accordingly, the defendant applied Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as the "the Act") on February 7, 2005, "the deemed donation of the title trust property" to the effect that the plaintiff was donated the shares of this case from the OO, and that the price per share of the shares of this case was determined and notified as 11,623 won pursuant to Article 54 (2) and Article 55 of the Enforcement Decree of the Act (amended by Presidential Decree No. 17828, Dec. 30, 2002; hereinafter the same) and Article 63 (1) 1(c) of the Act, which is the provision on the evaluation of the price of unlisted shares, and then the plaintiff determined and notified the gift tax of 54,047,840 won (including additional tax) to the plaintiff (hereinafter referred to as the "disposition of this case").

C. The plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on May 3, 2005, but the Commissioner of the National Tax Service dismissed the plaintiff's request on June 8, 2005.

(In fact that there is no dispute, Gap's 5, 8, Eul's 1, Eul's 6-1, 2, Eul's 16-1 through 6, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful on the following grounds.

(1) The Plaintiff asked that the OOO, a former employee, takes office as the representative director of the OO’s association, and then register the Plaintiff as a non-standing director of the OO’s association. As such, the Plaintiff accepted it and issued the Plaintiff’s resident registration certificate and a certificate of seal impression to the OO. As such, the OO arbitrarily puts the instant shares under the Plaintiff’s name by stealing the Plaintiff’s name.

(2) In a case where an OO acquired shares of a mutual savings bank in excess of 10% of the total number of its issued voting shares, it borrowed 950,000 shares that are acquired by the OOO to the Financial Supervisory Commission in accordance with the relevant regulations, such as the Mutual Savings Banks Act, and distributed and acquired them in the name of 10 persons, including the Plaintiff, in order to avoid the issue of having to report it to the Financial Supervisory Commission and prove the source of the investment. Thus, there was no intention to seek tax avoidance through the title trust of the instant shares. Furthermore, the Plaintiff did not have any awareness as to the fact that it only lent its name at the request of the OOO, and that there was

(3) Although an OO acquired the instant stocks in KRW 3,50 per share, the Defendant erred by evaluating the price per share as KRW 11,623, and even if it assessed the stocks of an OO safe in accordance with the supplementary assessment methods for the stocks of an unlisted corporation as stipulated in the OO’s Act, the Defendant assessed the net asset value and fell under “the amount determined as costs as of the base date of appraisal as stipulated in the Act, the Enforcement Decree thereof, and the Enforcement Rule thereof,” and thus deducted it from the liability.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Whether the identity theft was committed

(A) Facts of recognition

1) On August 20, 2001, the OO acquired 115,00 shares of the OO safe (9.6% of the share ratio) in its name, and held office as the representative director of the OO safe on September 17, 2001.

2) The OO shall additionally acquire 950,00 shares (79.1% shares) from the OOO (hereinafter “OOO”) that is a major shareholder of the OO depository, in addition to 3,500 shares per share. When one shareholder exceeds 10/100 of the total number of outstanding voting shares in a mutual savings bank, it shall report to the Financial Supervisory Commission (amended by Act No. 10-2(3)2 of the former Mutual Savings Bank Act, Article 10-2(3)2 of the former Mutual Savings Bank Act, Article 692 of the former Mutual Savings Bank Act, and Article 6-2 of the Regulations on the Management of Business of Mutual Savings Banks (see Article 6-2 of the Regulations on the Management of Business of Mutual Savings Banks) that requires proof of the details of the funding required at the time of the acquisition of shares, the number of shares acquired shall be divided to less than 10%, and the above 950,00 shares shall be acquired in the name of the Plaintiff, including the Plaintiff, who was aware of the following:

No.

Name of shareholders

Date of stock acquisition;

Number of shares (number of shares)

Equity ratio (%)

Relation to OO

1

OO

November 27, 2001

18,000

9.83

Jeon-time workplace (Ofire) manuals

2

〃 4

18,000

9.83

Former workplace rent

3

OO

〃 4

18,000

9.83

High School (OO-high School) Hackdong

4

OO

〃 4

18,000

9.83

Lee Dong-Jin villages

5

OO

〃 4

28,000

2.3

Machan Machan

6

OO

December 8, 2001

100,000

8.3

Friendly Gu of the wife

7

OO

〃 4

90,000

7.5

High-speed line;

8

OO

〃 4

80,000

6.69

Senior Dong-dong and Chang-dong

9

OO

〃 4

100,000

8.3

Machan Machan

10

OO

〃 4

80,000

6.69

OO Operation restaurant employees

Total

950,000

79.1

3) Around July 2002, the Financial Supervisory Service conducted an investigation into the acquisition of the OO’s shares while auditing the OO’s shares. On July 12, 2002, the OO prepared and submitted a statement of acquisition of shares to the Financial Supervisory Service by seeking five borrowed shareholders, including the Plaintiff, including the Plaintiff, who reported the acquisition of the 450,000 shares on December 8, 2001 by seeking the acquisition of 10% or more of the shares shares in the Financial Supervisory Service, as it did not have any supporting documents, but there was no document to prove that there was no document to prove it.

4) On the other hand, as to the part of the shares transferred by OOO as above, the OO (representative representative director of OO), OO, and the plaintiff filed a complaint of breach of trust on May 2002, 202. On June 26, 2002, the plaintiff stated that "OOO will offer the shares of OOO depository in the name of the plaintiff around June 26, 2001, and that "OO will offer the plaintiff's resident registration certificate and certificate of personal seal to the plaintiff, and the plaintiff accepted it and delivered the above documents to OO". On November 11, 2002, OO also stated that "OO will not separately request the holders of shares including the plaintiff (hereinafter referred to as "the plaintiff et al.") including the plaintiff, etc. to consent to the name of the plaintiff."

5) On July 7, 2004, an OO orOO, a public official in charge of the OO regional tax office, investigated the process of acquiring the instant shares against the Plaintiff. After completion of the investigation, OOO requested that the Plaintiff enter the shares of OOO depository in the Plaintiff’s name for three to four years prior to the date of the investigation. As such, the Plaintiff prepared a written confirmation under the Plaintiff’s name (No. 3) stating that the Plaintiff consented and issued a certified copy of the resident registration and a certificate of seal impression, the Plaintiff confirmed that it was and signed on the last part.

6) However, on August 5, 2004, the plaintiff et al. submitted to the commissioner of the regional tax office a petition stating that "OOO acquired the shares of this case in the name of the plaintiff et al. using a certificate of personal seal impression issued by the plaintiff et al. for the plaintiff et al. to forgee the seals of the plaintiff et al. and appoint directors of OO safe." On September 15, 2004, the plaintiff et al. filed a complaint against OO as a crime of forging or uttering a private document. As OO made a confession on November 27, 2001, "OO forged or exercised the sales contract of this case under the name of the plaintiff et al. on November 27, 2001," the summary order was notified of a fine of KRW 300,000,000, which became final and conclusive around that time.

The testimony and the purport of the whole pleadings of Gap evidence, Gap evidence 2, Eul evidence 10-2, Gap evidence 12-4,7,8-2, Gap evidence 14-2, Eul evidence 14-2, Eul evidence 5, 7, 8-1 through 3-3, Eul evidence 9-1 through Eul evidence, part of the OO of the first instance court, the testimony of the OO of the witness of the first instance court and the O of the witness of the first instance court and the O of the witness of the first instance court, and the purport of the whole pleadings.

(B) Determination

1) The main sentence of Article 41-2(1) of the Act can not be applied where the registration, etc. has been made unilaterally regardless of the intention of the nominal owner. However, if such registration has been made unilaterally by the actual owner regardless of the intention of the nominal owner, it shall be proved by the party asserting it (see, e.g., Supreme Court Decision 88Nu27, Oct. 11, 1988).

2) On November 27, 2001, 201, OO was issued a summary order of KRW 3,00,00 for the reason that it used the name of the plaintiff, etc. to forge or exercise a sales contract for the shares of this case on the ground that it used the name of the plaintiff, etc. without permission, and the facts acknowledged as the crime of criminal judgment which became final and conclusive on the same facts cannot be acknowledged unless there are special circumstances where it is difficult to adopt a factual judgment in light of other evidence submitted in other trials (see Supreme Court Decision 96Da9621, May 28, 196). On the other hand, it is difficult to acknowledge that the plaintiff's assertion that it was not a witness of this case, and it is difficult to acknowledge that the plaintiff's statement was made in the name of the plaintiff 1 and the plaintiff 2's comprehensive statement that the plaintiff O acquired the shares of this case under the name of the plaintiff 1's own name during the investigation process conducted in 202 prior to the issuance of gift tax on the shares of this case.

(2) Whether the purpose of tax avoidance exists

(A) Facts of recognition

1. The process of acquisition of the instant shares of the OO and the appointment of the representative director

① An O safe issued 1.2 million shares, and around July 2001, the prior to the acquisition of the shares, the OO owned 20,065,00 shares (8.75%) with the exception of 135,00 shares, including 135,00 shares, including OO 95,00 shares, and OO 20,00 shares.

② OO was a company acquired through joint investment by OO and OO, and O was also under the control of OO's management while operating OO in collaboration with OO.

③ On the other hand, while serving as a company in the Korea Fire Insurance Co., Ltd., the OO was aware of the 115,000 shares out of the shares of the above OO's shares, which were owned by the OOOO in place of repayment of KRW 100,000,00 among the shares of the OO's shares, which were owned by the OOOO in place of repayment of KRW 100,000,00.

④ When there is a dispute over the shares held by the OO or the shares held by the OO or between the shares held by the OO or between them and the management of the OO depository, and it is not possible to manage it in mind because there is a conflict of opinion about the management of the OO depository, the OO was virtually in fact about August 2001, and it is impossible to trust the O's shares held by the representative director of the O depository at the time of transfer to the OO. As such, the O's shares acquired in the name of the 115,00 shares of the O depository, including 115,00 shares of the O depository at the time of transfer to the OO, and then requested the management thereof by taking office as the representative director of the O depository at that time, the above representative director of theO and the O depository recommended the O to sell the O's shares to the O depository to resolve the shortage of funds of theO.

⑤ Accordingly, around August 18, 2001, the OO entered into a first oral sales contract with the OO on 400,000 shares of an OO safe owned by the OOO. Around that time, the OO received KRW 400 million from the OO and paid it to the OO as the down payment, etc. for the said sales contract.

(6) After that, as the financial situation of the OOO was urgent, the OOO did not enter into a regular sales contract due to the evaluation of the price of stocks, etc., the OOO entered into a sales contract on November 27, 2001 by evaluating 3,500 won per share for 615,000 shares of the OO safe, and again entered into a sales contract at the same price on December 8, 2001.

7. However, the above sales contract was concluded with the O's belief that the O had no economic ability to pay KRW 3.775 billion (1,065,000) for the said shares. As such, the O did not receive any more funds from the OO, and the O did not pay the remainder of the sales price, excluding KRW 400,000,000,000,000,000.

④ On the other hand, even until March 2002, the OO did not receive 950,000 shares of the OO’s shares acquired according to the instant sales contract, and the said share certificates were kept in custody by the staff transfer type of the OO’s shares.

2) The circumstances leading to title trust

① On November 27, 2001, the OO acquired 50,000 shares excluding the 1115,00 shares already acquired in its own name pursuant to the instant sales contract. As a result, the OO reported to the Financial Supervisory Service on its shareholding ratio in excess of 10%, but it is not possible to undermine its financial capacity and thus, it is not possible to undermine its financial resources. In addition, when it falls under an oligopolistic shareholder with 51% or more of corporate tax, the OO reported a change of shares in its name with the consent of the OO, OO, O,O,O,O, andOO, and the 450,00 shares acquired on December 8, 201 under the name of the O,O,O,O, andO.

② OO reported the source of funds to the Plaintiff, etc., as well as where the share ratio acquired in the name of the Plaintiff, etc. exceeds 10%. Thus, in order to avoid this, the number of stocks acquired in the name of the Plaintiff, etc. was adjusted so that each ratio does not exceed 10%, and accordingly, only 90,000 shares, equivalent to 7.5%, were reported in the name of

3) Management status of OO safes

① From November 2001 to December 2001, the OO provided a loan of KRW 897,000,000 in total in the name of OO, an employee of the OO, etc. from November 2001 to December 200, when the OO was appointed as the representative director of the OO’s office and operated the OO’s fund.

② As a result of the audit conducted by the Financial Supervisory Service on July 2002, the management status was very poor, such as not preserving the bad debt allowances, etc. on August 27, 2002, as a result of the suspension of part of the business under the management improvement order issued by the Financial Supervisory Commission on August 27, 2002, the management system of the Korea Deposit Insurance Corporation was converted into the management management system of the Korea Deposit Insurance Corporation (the performance of duties by the representative director was suspended), and on February 21,

③ In the Seoul High Court 2007No604, 826 (Merger), the two years have been sentenced to a suspended sentence of imprisonment for a two-year period, on September 21, 2005, the Seoul High Court 2005 and the Seoul High Court 2005No1274 sentenced to a two-year period of imprisonment for a two-year period of imprisonment for a crime of violation of mutual savings banks. The Seoul High Court 2005No1274 sentenced to a two-year period of imprisonment for an occupational breach of trust.

④ At the time of title trust of the instant shares, the OO had owned a lot of land equivalent to KRW 1,378,311,620 and a building of KRW 519,36,502. However, due to insolvency, there was no dividend payment related to the instant shares, and there was no dividend plan.

4) The circumstances leading up to the Defendant’s taxation disposition on the OO safe

① Meanwhile, the Defendant: (a) conducted a corporate tax survey on and around May 2003 on and after the date of 1999, performed the management right of the OO depository; and (b) took out loans from a third party, such as OOO personal information, etc. during the period from March 4, 2002; and (c) determined that the amount of outstanding non-exclusive loans 2.765 billion won was irrecoverable due to the insolvency of OO as of August 27, 2002 at the time of the business suspension under the above management improvement order; and (d) on the other hand, the OO depository disposes of it as a bonus to OO, a related party under the Corporate Tax Act; and (e) on June 9, 2003, an OO depository, a withholding agent of the earned income tax on the OOO, imposed a disposition of imposition of KRW 9870,700,000,000 on earned income on account of non-performance of the tax withholding obligation under the income tax change notice.

② As a result of filing a lawsuit seeking revocation of the above disposition, on December 23, 2004, the judgment dismissing the part seeking revocation of the disposition imposing additional dues by Incheon District Court 2004Guhap1838, which was rendered on December 23, 2004, on the ground that the part seeking revocation of the disposition imposing additional dues is not an object of an appeal litigation. The judgment dismissing the lawsuit by the OOF on the ground that there is no evidence to acknowledge that the actual borrower of the loan is an OOO in relation to the disposition imposing additional dues on the source of earned income tax. The defendant revoked the above disposition imposing additional dues ex officio on July 31, 2006, which is pending in the appellate trial after filing an appeal against the above judgment, and eventually, the judgment dismissing the lawsuit on the ground that the Seoul High Court 2005Nu

(In addition to attached grounds for recognition, evidence of the above quoted evidence, evidence of 5, 6, evidence of 12-3, evidence of 13-3, evidence of 15, evidence of 16-2, evidence of 19-2, evidence of 19-2, evidence of 20-2, evidence of 11, evidence of 12-1, 2, each of the entries, and purport of the whole pleadings.

(B) Determination

The legislative purport of Article 41-2(1) of the Act is to recognize an exception to the substance over form principle 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 if the purpose of tax avoidance is not included in the purpose of the title trust, and the "tax" under subparagraph 1 of the same Article cannot be limited to the gift tax, and the burden of proving that there was no purpose of tax avoidance in the title trust exists a person who asserts it (see, e.g., Supreme Court Decision 2003Du13649, Dec. 23, 2004): Provided, That if the title trust was recognized as having been conducted for any reason other than the purpose of tax avoidance, and only if there is a vague circumstance that there is a possibility that the result of future tax reduction may occur, it shall not be deemed that such title trust had an objective of tax avoidance as provided in the proviso of Article 41-2(1) of the Act (see, e.g., Supreme Court Decision 2006Du3737.

Therefore, in light of the above legal principles, the purpose of title trust in this case, the existence of tax to be avoided due to the title trust in this case, and the awareness of the OO on this, etc. shall be examined, and it shall be determined as to whether there was an objective of tax avoidance in light of the above legal principles.

1) The purpose of the title trust of the instant shares

The following facts revealed in the above facts. ① The equity ratio of the OO’s shares acquired ultimately by the OOO is 88.7% (9.6% of the equity ratio in the name of theOO + 79.1% of the equity ratio in title trust). However, it is the amount paid as the stock price for 400 million won paid by the OOO. ② As such, the OO was a position in which it is impossible to provide a reasonable basis if it is required to report to the Financial Supervisory Commission more than 10% of the equity ratio in its own name and more than 10%, ③ theOO reported a change in the shares by lending 10 persons, including the Plaintiff, and ③ the name borrowed from many persons appears to have been reported to the Financial Supervisory Commission to avoid the fact that each of the shares ratio of the title trustee should exceed 10%, the purpose of this case’s administrative regulation, etc. is to avoid the report to the Financial Supervisory Commission.

(ii)the existence of taxes with possibility of avoidance and the purpose of tax avoidance;

The defendant is a tax item that is likely to be avoided by the commencement of the title of the shares of this case, and includes global income tax based on dividend income, secondary tax liability of oligopolistic shareholders, and acquisition tax deemed as oligopolistic shareholders under the Local Tax Act, and thus, the defendant will examine

(1) Global income tax on dividend income.

As seen earlier, even before one year has elapsed since the OO was appointed as the representative director, the OO’s safe was audited by the Financial Supervisory Service, and was under business improvement order issued by the Financial Supervisory Commission, and went through the bankruptcy. Ultimately, the bankruptcy was completed. In light of the circumstances that the OO made dividends related to the instant stocks due to defective business performance or did not have a dividend plan, it is difficult to deem that the OOO, at the time of the instant title trust, was under title trust with the purpose of evading dividend income by predicting dividend income taxation.

(2) The secondary tax liability of an oligopolistic stockholder.

The second liability for tax payment of oligopolistic shareholders recognized under Article 39(1) of the former Framework Act on National Taxes (amended by Act No. 7008 of Dec. 30, 2003; hereinafter the same) is imposed on oligopolistic shareholders in cases where it is deemed that an unlisted corporation that is the principal taxpayer is not able to collect taxes due to the default of taxes. According to the facts acknowledged earlier, it is difficult to view that the OOOOO was in arrears at the time of the title trust of the instant shares, and thereafter, the OOOO was not able to pay taxes due to the recognition of OO, and that the OOOO’s failure to pay withholding taxes on wage and salary income recognized by the OOOOO was finally revoked the disposition of imposition. In light of these circumstances, it is difficult to deem that the OOOO was in arrears at the time of the title trust of the instant shares, and it was anticipated that it would have avoided the secondary liability for tax payment of oligopolistic shareholders.

In addition, according to the provision of Article 39 (1) of the former Framework Act on National Taxes, in order for oligopolistic shareholders to be recognized as the secondary tax liability, more than 51/100 of the total number of issued stocks or total amount of investment of the relevant corporation must be the person who actually exercises the rights to the stocks or investment shares of the relevant corporation. In other words, the following facts revealed in the above facts: ① OO has no experience in operating financial business, and it has acquired the stocks of OO safe in accordance with the proposal of OO while operating a restaurant; ② OO has no amount contributed to acquiring the stocks of O safe; ② OO is the only amount paid for the acquisition of the stocks of 400 million won paid by OO, even if it is not delivered the stocks acquired by it until March 202, OOO appears to have been in possession of the rights to the stocks of O's representative director or O's executive director for the acquisition of the stocks, and it is difficult forO or O's former director to view that it and O's directors have been in actual control over the stocks.

(3) Deemed acquisition tax by oligopolistic stockholders

Article 105 (6) of the former Local Tax Act (amended by Act No. 7843, Dec. 31, 2005; hereinafter the same) provides that an oligopolistic shareholder of an unlisted corporation shall be deemed to have acquired an object subject to acquisition tax, separate from the acquisition tax borne by the relevant corporation, in proportion to the oligopolistic shareholder’s shareholding ratio. According to the facts acknowledged earlier, the OO shall be liable to pay acquisition tax on land and buildings owned by the OOO depository as oligopolistic shareholder under the former Local Tax Act, barring any other circumstance, unless the ownership ratio of the OOO’s stocks acquired by the OOO reaches 8.7%, and barring any other circumstance, the OO shall be liable to pay acquisition tax on land and buildings owned by the OO depository in proportion to its shareholding ratio. Thus, due to the title trust of the shares in this case, it would result in avoiding deemed acquisition tax under the former Local Tax Act. In addition, if the OOO under investigation conducted by the O prosecutor on Nov. 11, 2002, it appears to have stated the tax evasion’s stocks in this case.

However, as seen earlier, there is considerable doubt as to whether OO actually acquired the stocks of OO depository, as well as 3,765,000 won of the stocks of O depository acquired including the instant title trust, and the total assets limit of O depository at that time were 72,050,055,656, while the former Local Tax Act, which would have been avoided due to the title trust of the instant stocks, was 33,664,809 won (the value of the building and land, 1,897,678,122 won, 88.7% of the shares shares of XOO, X20/100, which would have been deemed to have been in fact a high proportion of the shares acquired by OO’s representative director after the fact that it was difficult forO to view that it had been in fact a high proportion of the shares acquired by the O depository after the fact that it had been in fact an OO’s representative director after the fact that it had been in fact an O’s name trust, even after the fact of O’s acquisition.

(C) Sub-decisions

Therefore, in light of the purpose of the title trust in this case, the existence of taxes to be avoided due to the instant title trust, and the awareness of the OO on it, etc., it is reasonable to deem that OO has no purpose of tax avoidance at the time of the said title trust to avoid administrative regulations, such as reporting to the Financial Supervisory Commission, and it is reasonable to deem that OO had no purpose of tax avoidance. However, it does not change merely because the result of future tax reduction may arise or that it may avoid disadvantage as an oligopolistic shareholder.

Therefore, the instant disposition based on the premise that the OO has the objective of tax avoidance should be revoked in an unlawful manner without considering the legitimacy of the calculation details.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the judgment of the court of first instance is revoked and the disposition of this case is revoked, and it is so decided as per Disposition.