The legitimacy of the imposition of gift tax by the legal fiction of title trust donation.

The existence of a title trust agreement can be recognized in light of all circumstances, since it is difficult to view that there is a special reason to appropriate the name of a person who was receiving benefits while performing the business of managing his/her own building as well as pro-windity, and it is difficult to view that there is a special reason to appropriate the name of a person who was receiving benefits. However, the title trust of donated stocks does not fall under

Article 41-2 (1) of the Inheritance Tax and Gift Tax Act

2018Guhap6761 Revocation of Disposition of Imposition of Gift Tax

An*

○ Head of tax office

March 20, 2019

April 18, 2019

1. The Defendant’s imposition of gift tax of KRW 349,857,420 (including additional tax) on December 28, 2007 against the Plaintiff on September 7, 2017, which exceeds KRW 31,702,054, among the imposition disposition of KRW 109,310,269, the amount exceeding KRW 31,702,054, is revoked.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

Each disposition of imposition of gift tax of KRW 211,867,320 (including additional tax) (including additional tax), KRW 130,546,570 on December 26, 2003, KRW 130,570 (including additional tax) on gift on December 31, 2003, KRW 651,647,387 (including additional tax) (including additional tax) on gift on December 31, 2003, and KRW 349,857,420 on gift on December 28, 207 is revoked.

1. Details of the disposition;

(a) Opening an account for depositing securities in the name of the plaintiff;

On December 22, 2003, ○○ Securities Co., Ltd. (the trade name was changed to “○○ Investment Co., Ltd.” on August 24, 2009; hereinafter “○○ Securities”) opened a securities deposit account (Account No. 000-000-000, hereinafter “Plaintiff’s ○○ Securities Account”) in the name of the Plaintiff in the name of the Plaintiff, and around that time, the securities deposit account (Account No. 000-000-00, hereinafter “△△ Securities Account”) was opened in the name of the Plaintiff in △ Securities Co., Ltd. (the account No. 0000, hereinafter “△△ Securities”).

(b) replacement and acquisition of shares of the AA;

1) In the Plaintiff’s account of ○ Securities (Account Number 000-00-000), The Plaintiff’s Bana transferred 1,000 shares of △△ Electronic shares on December 23, 2003, ② on December 26, 2003, the shares of 1,864 shares of Aa department store, 41 shares of Aa securities, 17,837 shares of BB class shares, respectively, to the Plaintiff’s account of ○○ Securities.

2) On December 31, 2003, AA acquired c construction shares 5,510 shares, bbbling shares 4,940 shares, 560 shares of △ electronic shares, 2,870 shares of Korean power, 1,770 shares of A Heavy Industries, 2,060 shares of Aa Heavy Industries, 2,060 shares of d shares, 1,330 shares of e shares, 3,80 shares of e shares.

3) On December 28, 2007, AA transferred 1,730 shares of △△ electronic shares to the Plaintiff’s account of ○○ Securities (Account Number 000-00-000) in its own name on December 28, 2007.

C. Former dispositions and rulings

1) On December 28, 2007, the head of the △△ Tax Office: (a) deemed AAA to have held title trust the Plaintiff with 1,730 shares of △△ Electronic shares; and (b) deemed the donation as a gift; and (c) issued a disposition imposing gift tax amount of KRW 357,172,880 (including additional tax of KRW 172,642,081) on the Plaintiff on September 9, 201.

2) The Plaintiff, who was dissatisfied with the previous disposition, requested the Tax Tribunal for a trial on October 17, 2012, but received a decision of dismissal on October 17, 2012. On November 29, 2012, the Plaintiff paid KRW 420,300,000,000 added additional charges to the gift tax by the previous disposition.

3) On December 11, 2013, the Plaintiff asserted that, after opening the Plaintiff’s ○ Securities Account by stealing’s theft of the Plaintiff’s name, 1,730 shares of △△ Electronic shares were deposited into the Plaintiff’s ○ Securities Account, and thus, it cannot be deemed that there had been an agreement on title trust between the Plaintiff and Ansan. The Plaintiff filed a lawsuit seeking the revocation of the previous disposition (000 Guhap00) with this court. However, this court rendered a ruling dismissing the Plaintiff’s claim on the ground that it is reasonable to deem that the Plaintiff consented, explicitly, in advance, to the establishment of the Plaintiff’s ○ Securities Account and the transfer of the said shares. The said judgment became final and conclusive as

D. Prior disposition of this case and the disposition of this case

1) The Defendant deemed that AA transferred shares to the Plaintiff’s ○ Securities Account or acquired shares through the △△ Securities Account (hereinafter “instant shares”) as above, and deemed that all the shares were held in title trust to the Plaintiff, and deemed that such shares were donated to the Plaintiff, and calculated the total amount of KRW 2,358,043,185 as indicated in the following table as deemed donation amount.

2) Accordingly, on September 7, 2017, based on the calculation as follows, the defendant made a disposition of imposition of gift tax of KRW 228,969,180 (including additional tax), KRW 139,094,80 (including additional tax), KRW 682,236,030 (including additional tax), and KRW 591,875,050 (including additional tax) as to the gift on December 26, 2003 (hereinafter referred to as "prior disposition").

3) On November 22, 2017, the Plaintiff filed a request with the Tax Tribunal for the revocation of the instant prior disposition. On April 23, 2018, the Tax Tribunal rendered a decision that “the instant prior disposition is corrected by excluding 229,530,807 won, calculated on December 23, 2003 and December 31, 2003, when calculating the value of donated shares, the assessment base and tax amount shall be 451,310 won from the assessed value of △△ electronic shares, and the additional tax shall be calculated on December 28, 2007, by excluding 229,530,807 won, calculated on December 28, 201, and the remainder of the request for a trial shall be dismissed.”

4) Accordingly, based on the calculation of the following table (unit: source), the Defendant issued a revised disposition on December 23, 2003 to the Plaintiff as follows: ① 211,867,320 won (including additional taxes); ② on December 26, 2003, gift tax of KRW 130,546,570 (including additional taxes); ③ on December 31, 2003, gift tax of KRW 651,647,387 (including additional taxes); ④ on December 28, 2007, gift tax of KRW 349,857,420 (including additional taxes) on gift tax of KRW 349,857,420 (including additional taxes) on gift tax of December 28, 2007.

Facts without any dispute arising in recognition, Gap evidence 1-1 through 4, Gap evidence 2, 3, Gap evidence 7-1, 2, Gap evidence 8, Eul evidence 1 through 4, and the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) As to the deemed donation of title trust property

A) As to whether a title trust agreement exists

From around 2000, the Plaintiff was engaged in the management of the commercial real estate for rent owned by AAA. However, AA lent the Plaintiff’s identification card while it was required to withhold the labor income tax in relation to the payment of wages for real estate management at around 2003. The Plaintiff used the Plaintiff’s identification card and opened the Plaintiff’s ○○ Securities Account and △△ Securities Account, each of which was known to the Plaintiff, thereby making the instant stock transaction.

On June 2011, the Plaintiff first known the Plaintiff of the fact that he opened an account of ○○ Securities and △△ Securities with the Plaintiff’s prior notice of imposition of gift tax prior to the previous disposition.

Therefore, since the shares of this case were entered into each of the above accounts by the plaintiff's identity theft, it cannot be deemed that there was a title trust agreement on the shares of this case between AA and the plaintiff.

B) As to the purpose of tax avoidance

In the divorce crisis with this BB, AA opened the Plaintiff’s ○ Securities Account and △△ Securities Account, respectively, and entered the instant shares into each of the said accounts, so there was no tax avoidance purpose.

2) As to the additional payment for arrears

A) Violation of the Framework Act on National Taxes

On December 23, 2003, the 26th of the same month, and the 31st of the same month, the time when the Plaintiff’s liability to pay gift taxes and additional taxes on shares donated on the 31st of the same month is established is the date on which the Plaintiff’s shares were replaced by the Plaintiff’s shares with the ○○ Securities Account, and on December 23, 2003, the date on which the Ansan acquired shares through the △△ Securities Account.

The latter part of Article 78(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") stipulated the amount equivalent to 20% of the unpaid tax amount, but the amended Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter referred to as the "Revised Inheritance Tax and Gift Tax Act") deleted the portion corresponding to the latter part, and the amended Inheritance Tax and Gift Tax Act was enforced on January 1, 2004.

Therefore, applying the revised Inheritance Tax and Gift Tax Act to the additional payment for the erroneous payment for the nominal trust of shares is retroactively imposed pursuant to the new tax law after the establishment of the tax liability for the act for which the tax liability is established. In violation of Article 18(2) of the Framework Act on

B) Violation of the principle of retroactive taxation prohibition under the Constitution

Even if the application of the revised Inheritance Tax and Gift Tax Act on the additional payment for the past due to the title trust of shares is lawful under Article 2 of the Addenda to the Inheritance Tax and Gift Tax Act, it is against the principle of prohibition of retroactive taxation under the Constitution.

3) As to the additional tax on non-declaration

On December 28, 2007, the Defendant applied 40% of the unfair non-reported penalty tax rate on the gift shares. Since the Plaintiff did not engage in fraudulent acts, such as active concealment, concealment, deception, etc. in relation to the instant share transaction, the Plaintiff does not constitute the requirements for the unfair non-reported penalty tax.

B. Determination

1) As to the deemed donation of title trust property

A) As to whether a title trust agreement exists

(1) The provision on deemed donation of property under title trust shall apply in cases where the actual owner and the nominal owner register in the name of the nominal owner under an agreement or communication with respect to property requiring a registration for the transfer or exercise of rights. Therefore, in cases where the tax authority unilaterally registers such property in the name of the nominal owner regardless of the intent of the nominal owner, it may not apply. In such cases, when it proves that the said real owner is different from the nominal owner, the tax authority must prove that the registration, etc. in the name of the actual owner was made in the unilateral act of the real owner regardless of the intent of the nominal owner (see Supreme Court Decision 2007Du15780, Feb. 14

(2) The following facts are acknowledged according to the descriptions of Gap evidence 3 to 6, 9, and Eul evidence 5.

(A) The Plaintiff’s application for registration of the account of ○○ Securities (hereinafter “instant application for registration”) dated December 22, 2003 is written on the Plaintiff’s home address as “○○○○○○ apartment-dong ○○○○○○ apartment-dong ○○○○○○○,” respectively, and the Plaintiff’s home contact address as “00-00”. This is not the Plaintiff’s address and contact address but the Plaintiff’s home contact address.

(B) On June 20, 201, the head of △△ District Tax Office rejected the Plaintiff’s notice of prior notice of imposition of gift tax prior to the previous disposition, and requested the Plaintiff to review the legality prior to the tax imposition on July 15, 2011.

(C) The Plaintiff requested the Korea Document Appraisal Board to appraise the completion of the instant application for registration and the transfer of the penmatics of AAA. As a result, the said two penmatics were found to have been commercial. The AA prepared to the Plaintiff an explanatory statement stating that “The Plaintiff’s identification card was voluntarily brought about on December 23, 2003 on the ground that it is necessary for the Plaintiff to manage the real estate owned by him from 200 to 200. Moreover, the Plaintiff opened the Plaintiff’s account of ○○ Securities without knowledge of the Plaintiff.” The Plaintiff submitted the said written appraisal statement and explanatorys as evidentiary materials to the Plaintiff.

(D) On November 26, 2018, AA prepared a confirmation statement stating that "I have opened a securities deposit account and traded listed shares by stealing the name of the Plaintiff, who was in the name of the UCC, clean-dou, KimD, building administrator Lee E-E (her husband of GlaD), and miscellaneous name."

(E) On January 22, 2019, the MaFF, at the time of opening the Plaintiff’s ○○ Securities Account, engaged in the business of opening the said account as an employee of the ○○ Securities Account, has opened a securities account in order to enhance the transaction performance with the Plaintiff, EE, KimD, UDR, and UCC’s identification card and a ban on opening the securities account with the Plaintiff, E, KimD, and UCC in 2003. At the same time, the Plaintiff prepared a confirmation document stating that “AF, at the same time, has opened the securities account in order to enhance the transaction performance with the knowledge of the Plaintiff’s fraudulent name theft.”

(f) With respect to the shares held by AAA in the name of KimD and EA, the tax authority did not impose gift tax on the shares held by AAA in the name of AAD and EA, on the basis that the AA used the name of AAD

(3) However, in full view of the following facts and circumstances acknowledged by the purport of the statements and the entire arguments submitted by evidence Nos. 5 and 6 of the Plaintiff’s evidence, it is difficult to believe that each statement in the confirmation statement of facts related to the Plaintiff’s identity theft is false, and the remainder of the above recognition alone is insufficient to confirm the fact that the Plaintiff’s opening of the Plaintiff’s ○○ Securities Account and △△ Securities Account, the transfer of shares to the Plaintiff’s ○○ Securities Account, and the acquisition of shares through the △△ Securities Account was conducted by the Plaintiff’s unilateral act regardless of the Plaintiff’s intent, and there is no other evidence to acknowledge the same, this part of the Plaintiff’s assertion is without merit.

(A) A.A. A.B and A. B made a stock transaction with the husband while lending the name of BB and A. The tax authority imposed gift tax by deeming such stock transaction as a title trust. The tax authority imposed gift tax on the said shares transaction. The disposition of gift tax is finalized as it is not dissatisfied with this BB and E. It is difficult to deem that A.A. is not only a relative relationship but also a special reason for A.A.’s illegal use of the name of the Plaintiff who was receiving the benefit from A.A. The tax authority determined that A.A. used the name of A.B and E.A. as seen earlier, the fact that the tax authority determined that A.A. used the name of A.D and E., which is only an employer, cannot be deemed to be the same as the Plaintiff, who is an

In this regard, the Plaintiff asserted that, if he knew of the fact that there were shares in the account held in the Plaintiff’s name because the Plaintiff was economically poor at the time, he could have an idea to sell it. However, on December 28, 2007, it is reasonable to view that the Plaintiff had a title trust agreement between the Plaintiff and the Plaintiff on at least the above shares, barring any special circumstance, since the fact that the previous disposition on the premise that the Plaintiff’s act of replacing △△ electronic shares 1,730 shares with the Plaintiff’s ○○ Securities account was lawful is the same as in the first instance judgment that the Plaintiff did not raise any objection against the fact that the previous disposition on the premise that the act of replacing △△ electronic shares constitutes a title trust, was legitimate, and therefore, it is reasonable to view that the above shares was a title trust agreement between the Plaintiff and the Plaintiff, barring any special circumstance. As between December 28, 2003 and December 28, 2007, there is no reason to change the Plaintiff’s behavior from the name trust

In addition, the alternative withdrawal of each share in December 23, 2003 and December 26, 2003 and December 28, 2007 is the mother of the substitute withdrawal on December 23, 2003.

In the case of the plaintiff's two accounts with ○○ Securities, the "establishment of such accounts" is the name theft, and the "stock transfer on December 28, 2007" is a name trust. It is very rough and natural sacrifies to regard it as a name trust.

(B) In 2005, the tax authority issued a global income tax notice [the reported type is the type of financial income Z (interest, dividend income exceeding KRW 40 million)] to ○○○○-dong ○○ apartment-dong ○○○○○, ○○-dong ○○, ○○, ○○-dong, ○○○○, ○○, ○○, ○, ○, ○, ○, the Plaintiff filed a final tax return on global income tax with the amount of interest income of 5,219,548 won in May 31, 2005 and the amount of dividend income of 79,838,19

In this regard, the plaintiff did not receive the above notice, and there is no evidence to support the plaintiff's allegation that the tax accounting corporation related to the AA-A-related global income tax return for the year 2004 was acting on behalf of the plaintiff, and the plaintiff did not know the reported facts and contents.

In addition, it is reasonable to view that the Plaintiff was aware of the occurrence of considerable amount of interest and dividend income on the basis of the above notice alone.

Furthermore, even if AA led and acted on behalf of AAA for tax return, this is sufficiently possible in the case of title trust, and thus, it does not correspond to the Plaintiff’s assertion of identity theft.

(C) The title trust of shares is an agreement under which the actual owner of the shares lends the name of another person to transfer the ownership of the shares, and the actual owner is to have ownership of the shares, and it is common for the actual owner to engage in the transaction, such as disposal of the shares. Therefore, it is difficult to deem that AA is supporting the fact that the address and contact details of AA are entered in the registration application of the instant case.

(D) According to Article 4(4) of the former Inheritance Tax and Gift Tax Act, where the provision on the constructive gift of title trust property falls under the provision on the constructive gift of title trust property, the donor is jointly and severally liable to pay gift tax with the donee. The details of the preparation of the AA and each statement on confirmation of facts constituting the donor

(E) Even if A.A. had the Plaintiff’s identification card and a tool to request the opening of the Plaintiff’s ○ Securities Account, a title trust agreement between A.A. and A.A. may have been concluded between A.A. and the Plaintiff, and it may be said that A.A. might have used the Plaintiff’s name. In addition, there is no explanation as to what reason the C.F.’s confirmation of the production of C.F.’s identity, and there was no obvious opportunity for A.A. to memory from the opening of the Plaintiff’s ○ Securities Account even after the lapse of a long time from the Plaintiff’s opening of the Plaintiff’s ○ Securities Account.

B) As to the purpose of tax avoidance

The legislative purport of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle in the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, if the title trust was recognized to have been conducted for any reason other than the purpose of tax avoidance, and it is merely a minor reduction of tax incidental to the said title trust, it cannot be readily concluded that there was a "tax avoidance purpose" in such title trust. However, in light of the legislative purport as above, inasmuch as the purpose of the title trust is not included in the purpose of the title trust, it cannot be determined that there was a deemed donation by applying the proviso of the above provision only when the purpose of the title trust is not included in the purpose of tax avoidance, and it cannot be said that there was an intention of tax avoidance. In this case, the burden of proving that there was no intention of tax avoidance exists a nominal person who asserts it (Supreme Court Decision 2007Du1933

In addition, there is no evidence to acknowledge that AA was in the crisis of divorce between BB and the spouse of AB (or, in so doing, it is recognized that AA has held the title trust of shares on December 22, 2006 and December 28, 2007, respectively). The Plaintiff’s assertion on this part is without merit.

2) As to the additional payment for arrears

A) As to the assertion of violation of the Framework Act on National Taxes

(1) The latter part of Article 78(2) of the former Inheritance Tax and Gift Tax Act stipulated the amount equivalent to 20% of the unpaid tax amount. However, Article 78(2) of the amended Inheritance Tax and Gift Tax Act deleted the portion corresponding to the latter part. The amended Inheritance Tax and Gift Tax Act enters into force on January 1, 2004 (Article 1), and Article 78(1) and (2) of the amended Inheritance Tax and Gift Tax Act enters into force on January 1, 204 (Article 1), and Article 78(1) and (2) of the amended Inheritance Tax and Gift Tax Act enters into force on the date of the due date after

According to Articles 68(1) and 70(1) of the former Inheritance Tax and Gift Tax Act, the period within three months from the date of donation is the filing deadline and the payment deadline of the gift tax. The Plaintiff’s payment deadline for the gift tax on each gift share on December 23, 2003, the 26th of the same month, and the 31st of the same month shall be March 23, 2004; the 26th of the same month; and the 31st of the same month.

Therefore, the Plaintiff’s payment deadline of the gift tax on each of the above shares of gift comes after the enforcement date of the amended Inheritance Tax and Gift Tax Act. Thus, the Plaintiff’s payment deadline of the gift tax becomes invalid due to the application of Article 78(2

(2) However, pursuant to Article 18(2) of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007; hereinafter the same), with respect to income, profit, property, act or transaction in which the obligation to pay a national tax is established, a new tax law shall not be levied retroactively after such establishment.

Pursuant to Article 21 (1) of the former Framework Act on National Taxes, the obligation to pay a national tax arises when the property is acquired through the donation in the case of a gift tax (Article 3) and when the liability to pay a national tax to be added in the case of a penalty tax (Article 11).

Therefore, on December 23, 2003, the 26th of the same month, and the 31st of the same month, the time when the Plaintiff’s liability for the payment of gift tax and additional tax with respect to each gift on the 31st of the same month is established, is in violation of Article 18(2) of the former Framework Act on National Taxes to calculate an additional tax on the additional payment for the above gift shares by December 23, 2003, on the day when the Plaintiff’s shares were replaced by the Plaintiff’s shares with the ○○ Securities Account, and on December 23, 2003, the day when the AA acquired shares through the △△ Securities Account.

(3) As can be seen, Article 12 of the Addenda to the amended Inheritance Tax and Gift Tax Act and Article 18(2) of the former Framework Act on National Taxes are contradictory and promoted. In such a case, the Special Act ought to take precedence over the general law (see Supreme Court Decision 2013Du4590, May 16, 2014).

However, Article 12 of the Addenda to the amended Inheritance Tax and Gift Tax Act constitutes a special law under Article 18(2) of the former Framework Act on National Taxes, and Article 18(2) of the former Framework Act on National Taxes applies only to the Plaintiff’s obligation to pay additional tax due to each of the above donations, and Article 18(2) of the former Framework Act on National Taxes does not apply (Article 21(1)11 of the former Framework Act on National Taxes, even if the cause for imposing additional tax arises after the establishment of the principal tax liability, the period of establishing additional tax is equal to the period of establishing the principal tax in order to prevent unreasonable result that the additional tax and the principal tax are separately treated. However, if the point of occurrence of additional tax is after the enforcement of the amended Inheritance Tax and Gift Tax Act, Article 12 of the Addenda to the amended Inheritance Tax and Gift Tax

Therefore, this part of the plaintiff's assertion is without merit.

B) As to the assertion of violation of the principle of retroactive taxation prohibition under the Constitution

The part concerning Article 78(2) of the amended Inheritance Tax and Gift Tax Act in Article 12 of the Addenda to the amended Inheritance Tax and Gift Tax Act applies from the beginning of the additional due date after the due date for payment arrives after the amendment of Article 78(2) of the amended Inheritance Tax and Gift Tax Act enters into force. It does not apply to the case where the additional due date for payment comes to 20% of the unpaid tax amount, which is the limit of the additional due date for payment under the former Inheritance Tax and Gift Tax Act at the time of the enforcement of the amended Inheritance Tax and Gift Tax Act. Thus, it does not apply to the cases where the additional due date for payment occurs in the past, but it does not apply to the cases where the additional due date for payment does not reach 20% of the unpaid tax amount at the time of the amended Inheritance Tax and Gift Tax and Gift Tax Act enters into force (see Supreme Court Decision 98Du7060, Sept. 3, 199).

Therefore, the plaintiff's assertion on this part is without merit.

3) As to the additional tax on non-declaration

A) According to Article 47-2 of the former Framework Act on National Taxes, where a taxpayer fails to file a tax base return within the statutory due date of return, an amount equivalent to 20% (hereinafter referred to as "general non-reported penalty rate") of the calculated tax amount under tax-related Acts (hereinafter referred to as "calculated tax amount") shall be added to the payable tax amount (the main sentence of paragraph (1)), but where a taxpayer fails to file a tax base return by any improper method (referring to any method prescribed by Presidential Decree as violating the duty to report the tax base or tax amount of national tax on the basis of concealing or pretending all or part of the fact that serves as the basis for calculating the tax base or tax amount of national tax).

According to Article 27 (2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter the same), "the method prescribed by Presidential Decree" in the part other than each subparagraph of Article 47-2 (2) of the former Framework Act on National Taxes means the preparation of double books, such as the preparation of a false entry (title 1), preparation of false evidence or false documents (hereinafter referred to as "false evidence, etc."), receipt of false evidence (Article 2) (Article 3), destruction (Article 4), concealment of books and records (Article 4), concealment of assets, fabrication or concealment of income, profit-making, transactions (Article 5) and other fraudulent acts (Article 6) to evade or receive refund or deduction of national taxes.

B) The Defendant asserts that the title trust on the donated shares on December 28, 2007 falls under the “discepting property” under Article 27(2)5 of the former Enforcement Decree of the Framework Act on National Taxes.

Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes provides for unfair methods for taxpayers to evade, receive refund and deduction of national taxes. National taxes that the Plaintiff is liable to pay for the said shares are gift taxes. Therefore, in order for the Plaintiff to fall under the requirements for imposing unfair non-declaration penalty tax to obtain title trust for the Plaintiff to obtain title trust from AA, the Plaintiff should have presumed that the title trust was made in order to evade gift tax, and in order for the Plaintiff to have had the intent to evade gift tax, the said shares should

However, there is no evidence to acknowledge that the Plaintiff actually received the above shares from AA, and as seen earlier, AA appears to have held the above shares in title trust to the Plaintiff for the purpose of tax avoidance, and in this case, AA merely imposes gift tax by deeming it as a gift for the purpose of imposing sanctions on title trust.

As such, in the event that gift tax is imposed on the title trust deemed as a gift not on the gift but on the title trust deemed as a gift, the title trust does not have been granted for the purpose of evading the gift tax, and such title trust does not constitute “the concealment of property” under Article 27(2)5 of the former Enforcement Decree of the Framework Act on National Taxes (the Defendant also applied each general non-reported penalty tax rate to the donation on December 23, 2003, donation on December 26, 2003, donation on December 31, 2003, and donation on December 31, 203, and applied the general non-reported penalty tax rate to the previous disposition on donation on December 28, 207).

Therefore, the defendant's above argument is without merit, and this part of the plaintiff's argument is with merit.

C) Of the instant disposition, the imposition of gift tax on December 28, 2007 KRW 349,857,420 (including additional taxes) is comprised of ① the imposition of gift tax of KRW 158,510,269, ② the imposition of additional tax on KRW 109,310,269, ③ the imposition of additional tax on KRW 82,036,890, as shown below.

The above non-declaration penalty tax amounting to KRW 155,216,430 (= gift tax amounting to KRW 388,041,076 x 0.4) is subject to an unfair non-declaration penalty tax rate. Since the non-declaration penalty tax applying the general non-declaration penalty rate is KRW 77,608,215 (= gift tax amounting to KRW 388,041,076 x 0.2 x 0.2), the non-declaration penalty tax amount that should be imposed on the gift on December 28, 2007 is KRW 31,702,054 (= KRW 77,608,215 - 45,906,161). Accordingly, the Defendant’s imposition of gift tax on the Plaintiff on September 7, 2017 should be revoked on December 28, 2007, KRW 349,57,4209 (including penalty tax).