Plaintiff (Law Firm Jindo, Attorneys Choi Yong-seok et al., Counsel for plaintiff-appellant)

head of Dongjak-gu Tax Office

December 3, 2015

1. The Defendant’s disposition of imposition of KRW 4,037,771,950 against the Plaintiff on October 16, 2013 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, as the representative director of D.S. E. E. E. E. E. E.S. (hereinafter “E.S. E.C.”), holds 67.63% of the shares issued by the Plaintiff.

B. On October 1, 2007, the Plaintiff entered into a contract with Nonparty 1 (Seoul: Nonparty) to determine matters necessary to acquire the shares and management rights of the major shareholders of the Korea Social Security Electronic Co., Ltd. (hereinafter “former Social Security Co., Ltd.”), including the following (hereinafter “instant agreement”).

Article 1 (Acquisition, etc. of Management Right Stocks of the target company) (1) (referring to 1; hereinafter the same shall apply) A (referring to 2,680,288 shares held by major shareholders of the target company (referring to e.g., social gathering electronic; hereinafter the same shall apply) shall acquire registered ordinary shares of 17,500,000,00 and management rights (hereinafter referred to as "management rights and shares") of the target company, and shall raise funds necessary therefor. Article 5 (Re-transfer of Management Rights and Shares of the target company; hereinafter the same shall apply) (referring to the plaintiff; hereinafter the same shall apply) shall pay the sum of 5 billion won for the acquisition of management rights and shares of the target company and related financial expenses, and immediately after completion of the payment and related financial expenses of the secured shares out of the preferentially allocated shares, Gap will fully belong to the rights of the secured company's management rights, shares and allocated shares. Accordingly, Gap shall, in principle, request the target company to take necessary measures, such as transfer of shares, without delay.

C. On December 5, 2007 and January 25, 2008, the Plaintiff lent KRW 18,258,000,000 to Nonparty 1, respectively, and KRW 12,660,00,000 to Nonparty 1, respectively, with respect to the instant agreement. In the event Nonparty 1 fails to refund the borrowed amount by the due date, the Plaintiff decided to transfer the ownership of KRW 2,680,00 to Nonparty 1, in lieu of the refund of the borrowed amount, to Nonparty 1.

D. After the dispute arises between the Plaintiff and Nonparty 1, on October 23, 2009, the Plaintiff filed a lawsuit against Nonparty 1 for a loan claim against the Seoul Central District Court 2009Gahap120714, and on December 18, 2009, the above court concluded a mediation that the principal amount of the loan to Nonparty 1’s Plaintiff is KRW 9,300,000,000, and ② Nonparty 1 transferred the registered common shares issued in 100,000 to a third party 4,984,436 shares issued in 20,000 (hereinafter “instant shares”) to pay the said loan amount to the Plaintiff or transfer the money to the third party, and that the said amount should be appropriated first to the principal of the loan obligation.

E. Accordingly, on December 30, 2009, Nonparty 1 entered into a contract for share acquisition with Integyke to transfer the instant shares in KRW 9,300,000,000 with Ingykes. On January 8, 2010, Nonparty 1 notified the Plaintiff of the share transfer claim against Ingykes by means of content-certified mail on December 30, 2009. Meanwhile, on December 30, 2009, Nonparty 1 entered into a monetary loan agreement with Ingykes including the following contents:

Article 1 [Purpose] 1. B (referring to Manck; hereinafter the same shall apply) included in the main text bears the obligation of Nonparty 1 to take over 4,984,436 shares of the existing social gathering electronic shares, and to pay the acquisition price of KRW 9.3 billion to Nonparty 1 upon Nonparty 1’s request for the transfer of claims. 2. Based on the above paragraph 1, A shall lend KRW 9.3 billion to B and borrow it. Article 2 / [Repayment] 1. The repayment period shall be December 30, 2012, which is the time when B is stable, and the method of repayment shall be paid by sending or remitting to the address of Party 1. 2. The interest payment shall be made in full at the time of repayment and by one-year extension on December 30, 2012, which is difficult to be made. 3. 3% of the principal of the loan shall be paid at one-year maturity.

F. From May 22, 2013 to June 30, 2013, the Defendant: (a) as a result of conducting an integrated investigation of corporate tax on an existing social gathering electronic, the Plaintiff deemed that the instant shares were held in title trust in the Intearc; and (b) on October 22, 2013, determined and notified the Plaintiff of KRW 4,037,71,950 of the gift tax on the gift donated on December 30, 2013 (hereinafter “instant disposition”).

G. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on December 24, 2013, but was dismissed on January 2, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, 6, 7 evidence, Eul evidence 1-1, 2, Eul evidence 2, 3, 14 through 16, Eul evidence 19-1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

1) Plaintiff

The Plaintiff did not have held the title trust of the shares of this case with Mapotech. The Plaintiff was originally intended to control Mapotech’s social gathering electronics through Mapotech, and was invested from Mapotech on this premise, and Mapotech had already held 3,516,971 shares issued by Mapotech’s social gathering event. The Plaintiff determined that, rather than acquiring the shares of this case in the Plaintiff’s personal name, the Plaintiff would have acquired the shares of this case by increasing the number of shares owned by Mapotech’s major shareholders of Mapotech’s social gathering event rather than acquiring the shares of this case in the Plaintiff’s personal name, thereby, it cannot be deemed that there was any intent of tax avoidance even if the Plaintiff is assessed as a title trust.

2) Defendant

Although the Plaintiff initially agreed to receive payment in lieu of the instant shares while lending funds to Nonparty 1, the Plaintiff treated that the instant shares were transferred to Nonparty 1 in the course of Nonparty 1’s lawsuit, thereby having been repaid the loan to Nonparty 1, and thus, the Plaintiff was in title trust with the Plaintiff. In addition, the Plaintiff had a transfer income tax to have been reported and paid before December 21, 2009, but avoided the execution of the said transfer income tax by acquiring the instant shares in the name of Stetec.

B. Relevant statutes

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

(c) Fact of recognition;

1) On March 28, 2008, Integroid acquired 3,516,971 shares issued by a 3,516,971 shares issued by a 1st century. On December 30, 2009, as a result of Nonparty 1’s acquisition of the shares of this case from Nonparty 1, the notice was made to the largest shareholder (8,501,407 shares, and 16.35 percent shares) of a 3,501,407 shares held (the purpose of acquiring shares: stability of management rights, expansion of new projects, and management of the largest shareholder).

2) The India included the instant shares in the asset portion of the balance sheet as “salableable securities” and, on December 30, 2009, appropriated 9.3 billion won as “short-term loan” on the debt portion of the balance sheet as “short-term loan”.

3) The India offered 2,680,288 shares out of the shares of this case as security for obligations with respect to treatment securities. The remaining 2,304,148 shares were distributed to and managed in the personal account of each securities company in the name of Posc, and the proceeds were sold on November 25, 2010 and used as repayment of obligations with respect to Korean investment securities of Posc, social gathering electronic convertible bonds, etc.

[Ground of recognition] The evidence mentioned above, Gap evidence Nos. 5, 9, Gap evidence No. 10-1 through 20, Gap evidence No. 11, Gap evidence No. 12-1, 2, and No. 14, Gap evidence No. 14, response to the order to submit financial transaction information to Daewoo Securities Co., Ltd. on December 2, 2015, and the purport of the whole pleadings

D. Determination

1) Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010); Article 45-2(1) applies to cases where a de facto owner and a nominal owner make a registration, etc. in the name of a nominal owner by entering into an agreement or communication between the nominal owner and the nominal owner. The title trust relationship is not necessarily established by the explicit contract between the truster and the trustee, but can also be established by implied agreement (see Supreme Court Decision 2000Da49091, Jan. 5, 2001). Whether an implied agreement on the title trust was reached shall be reasonably determined in light of social norms by comprehensively taking into account all the circumstances, such as the relationship between the truster and the trustee, the motive and background of the trustee’s custody of the property, the transaction details and mode between the truster and the trustee, etc., and the burden of proving whether a gift tax is based on the provision on deemed donation of a title trust property.

2) The following circumstances revealed in the instant case’s return to the Plaintiff, i.e., the Plaintiff: (a) acquired the instant shares from Nonparty 1; (b) was publicly announced as the largest shareholder of the existing social gathering event; and (c) Nonparty 1 appears to exercise the right as a shareholder at the shareholders’ general meeting, etc.; (b) transferred the instant shares to the Plaintiff. The instant shares were transferred to the Plaintiff by means of Matec’s assets; (c) the instant shares were appropriated as Matec’s liabilities; and (d) the Plaintiff first agreed to acquire the management right of Matec’s Matec’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac’s Mac.

3) Therefore, the instant disposition, premised on the fact that the instant shares were held in title trust, cannot be deemed to have been proven as to the title trust. Therefore, the instant disposition ought to be revoked in an unlawful manner without further examining the remainder of the Plaintiff’s allegations.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.

[Attachment]

Judges Park So-young (Presiding Judge)