Suwon District Court-2015-Gu Partnership-68599 (20. 20, 2016)

It is reasonable to view that the change of the grounds for the disposition by the defendant is permitted as it is conducted within the scope that maintains the identity of the grounds for the previous disposition.

Since the donation of cash for purchase of outstanding shares, which is the original disposal ground of the instant disposition, and the deemed donation of title trust of outstanding shares, which is the changed disposal ground of the instant disposition, only differ from the composition of taxation requirements and legal evaluation, it does not change the basic facts that constitute the taxation ground, it is reasonable to deem

Donation of title trust property under Article 45-2 of the former Inheritance Tax and Gift Tax Act

2016Nu6074 Revocation of Disposition of Imposition of Gift Tax

IsaA

○ Head of tax office

Suwon District Court Decision 2015Guhap68599 Decided July 20, 2016

January 17, 2017

February 7, 2017

1. Revocation of a judgment of the first instance;

2. On February 3, 2014, the Defendant dismissed the Plaintiff’s lawsuit seeking revocation in excess of KRW 380,92,50 (including additional taxes) of the imposition of KRW 419,715,00 (including additional taxes) of gift tax for the year 2007, which was imposed by the Plaintiff.

3. The plaintiff's remaining claims are dismissed.

4. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposing gift tax of KRW 419,715,00 (including additional tax) on the Plaintiff on February 3, 2014 shall be revoked.

2. Purport of appeal

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

1. Details of the disposition, the plaintiff's assertion, and relevant statutes;

The reasoning for this Court’s explanation is as follows: (a) No. 4 of the first instance court’s decision No. 5; and (b) No. 6 of the fourth instance court’s decision No. 6; and (c) subsequent to the addition of “No. 1 and No. 2” as stated in the corresponding part of the judgment of the first instance except for the addition of “No. 1 and No. 2”, and therefore, the same is cited in accordance with Article 8(2) of

(k) On the other hand, on June 11, 2014, the Defendant rendered a decision to reduce the amount of KRW 38,722,50 (including additional tax) ex officio revocation of the imposition of gift tax of KRW 419,715,00 (including additional tax) on the Plaintiff.

2. Whether the part of the lawsuit in this case, which was revoked ex officio, is legitimate

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2012Du18202, Dec. 13, 2012).

In full view of the purport of the argument in Eul evidence No. 2, the defendant rendered a decision of correction on June 11, 2014, to revoke ex officio the disposition imposing a gift tax of KRW 419,715,00 (including additional tax) on the plaintiff in 2007 exceeding KRW 380,92,50,00, among the disposition imposing a gift tax of KRW 419,715,00 (including additional tax) attributed to the plaintiff, and the defendant can be recognized as having notified the plaintiff during the proceeding of the lawsuit in this case. As such, the claim for revocation of ex officio as to the part of the lawsuit in this case as above

3. Whether the disposition of this case was legitimate for imposing 380,92,500 won (including additional tax)

A. Since the subject matter of a taxation revocation lawsuit is objective existence of the tax amount determined by the tax authority, the tax authority may submit new data that can support the legitimacy of the tax base or tax amount recognized in the relevant disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, and it does not necessarily mean that only the data at the time of the disposition should be determined whether the disposition is legitimate or that only the reasons at the time of the disposition can be asserted (see, e.g., Supreme Court Decision 2010Du7277, May 24, 2012).

B. First, we examine whether the basic facts are not recognized by changing the year to which the donation belongs.

1) The main sentence of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act provides that in case where the actual owner and the nominal owner are different from the property (excluding land and buildings; hereafter the same shall apply in this Article), the value of the property shall be deemed to have been donated to the actual owner on the date when the actual owner registers, etc. as the nominal owner (where the property is subject to a transfer of ownership, it refers to the day following the end of the year following the year to which the date of acquisition of ownership belongs) notwithstanding the provisions of Article 14 of the Framework Act on National Taxes. The phrase "in case of the property requiring a transfer of ownership, it refers to the day following the end of the year to which the date of acquisition of ownership belongs if the property is subject to a transfer of ownership, and the term "in case of the property requiring a transfer of ownership, it refers to the day after the end of the year following the year to which the date of acquisition of ownership belongs, which requires a transfer of ownership or a transfer of ownership

2) Article 45-2(3) of the former Inheritance Tax and Gift Tax Act provides that where the list of shareholders is not prepared, the transfer of shares shall be determined based on the statement of changes in stocks, etc. submitted to the head of the competent tax office. However, the fact that the list of shareholders was not prepared for the stocks of MF does not conflict between the parties, and that the plaintiff acquired 300,000 shares of MF issued on October 2, 2007 to the head of the competent tax office. As above, the date of donation of the stocks at issue shall be "the date of donation" under Article 45-2(3) of the former Inheritance Tax and Gift Tax Act, and the part "where the property is a property requiring a transfer of ownership, it refers to the date following the end of the year following the date of acquisition of ownership." The above assertion by the plaintiff is without merit.

C. Next, we examine whether the "the deemed donation of title trust of stocks in dispute" as the "cash donation of the amount of dispute" and the identity of the basic fact relation is recognized.

앞에서 든 각 증거 및 을4호증의 1, 2, 을5, 6호증의 각 기재에 변론 전체의 취지를 종합하면, 김AA이 박HH 명의로 SS바이오 주식 35,000주를 보유하고 있다가 2007. 9. 21. 최KK 명의 계좌로 위 SS바이오 주식 양도대금 1,838,000,000원을 선지급받고 2007. 9. 27. 위 주식을 YY웍스에 매도한 사실, 2007. 10. 8. 최KK 명의 계좌에서 박HH 명의 계좌로 위 주식양도대금 1,838,000,000원이 송금되었다가 그 중 16억 원이 원고 명의 계좌로 송금되었고, 같은 날 원고 명의 계좌로 원고 명의의 SS바이오 주식 양도대금 822,375,000원이 이체되었으며, 다시 원고 명의 계좌에서 총 23억 원이 자기앞수표로 출금되어 티MM 계좌로 입금된 사실, 2007. 10. 2. 쟁점 주식을 포함한 티MM 주식 300,000주가 원고 명의로 이전된 사실, 한편 원고의 시어머니인 박HH는 최초 원고 명의로 이체된 16억 원의 증여자로 인정되어 반포세무서로부터 증여세 677,421,600원이 부과되자 위 계좌의 실제 소유자가 아들인 김AA이라고 주장하였고, 반포세무서는 이를 받아들여 박HH에 대한 증여세 부과처분을 직권으로 취소하고, 원고의 계좌에 입금된 16억 원 중 8억 원을 김AA이 원고에게 증여한 것으로 보고 증여자를 김AA으로 변경하여 피고에게 과세자료를 통보한 사실을 인정할 수 있다.

According to the above facts, it is reasonable to view that the "cash donation of purchase fund for shares in dispute," which is the initial reason for the disposition of this case, and "the constructive gift of title trust for shares in dispute," which is the reason for the changed disposition, is permitted since the change of the defendant's disposition was made within the scope of maintaining the identity of the previous disposition and disposition, since it differs from the composition of taxation requirements and legal evaluation as to whether the plaintiff is deemed to have donated the acquisition fund for shares in question to the plaintiff, which is the wife, or whether it is deemed to have held the title trust for shares in question or not, and since it does not differ from the basic facts that constitute the reason for taxation. The plaintiff's above assertion is without merit.

D. We examine whether the deemed donation of title trust of the shares at issue, which is the changed reason for disposal, is legitimate or not.

The provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act shall apply in cases where a real owner or a nominal owner makes a registration, etc. in the future by agreement or communication with the nominal owner with respect to property which requires the transfer or exercise of the right, and such registration, etc. is not applicable in cases where the tax authority unilaterally makes a registration, etc. in the name of the nominal owner, regardless of the intent of the nominal owner. In such cases, the tax authority must prove only the fact that the actual owner is different from the nominal owner, and the burden of proving that the registration, etc. of the nominal owner was made by a unilateral act of the real owner regardless of the intent of the nominal owner should be borne by the nominal owner who

The legislative purport of the above provision is to recognize an exception to the principle of substantial taxation with the purport of effectively preventing the act of tax avoidance using the title trust system, and realizing the tax justice. Thus, if the title trust was recognized as having been conducted for any reason other than the purpose of tax avoidance, and only a minor reduction of tax incidental to the said title trust occurs, it cannot be readily concluded that there was a "purpose of tax avoidance" in such title trust. However, in light of the legislative purport as seen above, it cannot be deemed that there was an intention of tax avoidance by applying the proviso of the above provision only when the purpose of tax avoidance is not included in the purpose of the title trust. In addition, determination as to whether there was an intention of tax avoidance should not be made at the time of the title trust, and whether there was an intention of tax avoidance should not be determined at the time of the said title trust. Meanwhile, the burden of proving that there was no purpose of tax avoidance, other than the purpose of tax avoidance, by proving that there was no other purpose of tax avoidance, other than the nominal owner, and if there was no objective or proof of tax avoidance in the title trust 20.

The following circumstances, which are acknowledged by the overall purport of the pleadings as follows, i.e., KimA: (a) held ES2 stocks in the name of another person, such as Park HH, and managed them as the actual owner of the account under the name of Park H; (b) deposited KRW 1,838,00,000 in the account under the name of Park HH; (c) the amount of KRW 1.6 billion was transferred to the Plaintiff’s account under the name of the Plaintiff; (d) on the same day, the total amount of KRW 2.3 billion was deposited from the account under the Plaintiff’s name to the MF account and deposited into the MF account; (e) around that time, 300,000 shares, including the key shares, were transferred to the Plaintiff’s name; and (e) Kim Jong did not have any other purpose of disposing of the Plaintiff’s shares under the Plaintiff’s title trust shares; and (e) there was no other reason to acknowledge that the Plaintiff did not have any issue in the Plaintiff’s taxation on the title trust of 9 billion stocks.

4. Conclusion

Therefore, the lawsuit for the part of the disposition of this case, which was revoked ex officio, shall be 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 unfair with different conclusions, the judgment of the court of first instance shall be revoked, and the above part of the disposition of this case shall be dismissed, and