early 2011 Middle 0156 (2.03)

The payment of this case was not received as payment for stock disposal, but received as a donation;

The fact that there was no entry of a change of holders in relation to shares and that there was no circumstance to deem that there was a involvement in the payment of capital gains tax from the sale of shares, and each payment was donated not to be paid as the price for the disposal of shares to investors.

2012Revocation of revocation of disposition imposing gift tax, etc.

AA and one other

Head of Central Tax Office

October 12, 2012

November 2, 2012

1. All of the plaintiffs' claims are dismissed.

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

On October 8, 2010, the Defendant respectively filed a disposition imposing gift tax on the Plaintiffs as stated in the separate sheet.

1. Details of the disposition;

A. The plaintiff YA is the omission of the non-party YB, and the plaintiff E is the legal spouse who was married between the above PEB and the 1999.

B. Around November 1999, HB took over 2,275 shares of DCC (hereinafter referred to as “1 shares”) by borrowing KRW 000 from CC at the time of the issuance of new shares to CCC (hereinafter referred to as “DD”) established as a subsidiary of CC, and at the time of the issuance of new shares by CCC (hereinafter referred to as “CCC”) established as a subsidiary of CC on April 2000.

(c) AB acquired 5,00 shares of DD(250,000 shares, hereinafter referred to as '2 shares') by exercising the stock option in 000 won a share price per share from DD in April 2001 after obtaining the right of choice to purchase 5,00 shares of DD (250,00 shares, hereinafter referred to as '2 shares' due to the subsequent share split).

D. From December 31, 2006 to December 31, 2009, HB sold each of the above shares from 2009 to 000 won, and paid 00 won out of the above sales price to EE once in total on four occasions from December 31, 2006 to December 31, 2009, and paid 00 won out of the remaining sales price to E in total on 13 occasions from September 27, 2006 to April 23, 2009 (hereinafter “each of the above payments received by the Plaintiffs”).

E. The Defendant deemed that the Plaintiffs received each of the instant payments from PEB, and imposed and notified the Plaintiffs EE the total amount of KRW 000, and the total amount of KRW 000,000, in addition to the attached list (hereinafter “each of the instant dispositions”).

F. The Plaintiffs were dissatisfied with each of the instant dispositions and filed an appeal with the Tax Tribunal on February 3, 2012, but the said claim was dismissed.

[Ground of Recognition] The facts without dispute, Gap evidence 1 through 3, Eul evidence 1 and 28, and Eul evidence 1 and 2 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Around December 2004, HB had been urged to pay KRW 000 of the acquisition price of new stocks of DD borrowed from CC, and the plaintiffs and YB had been urged to pay KRW 000,000, each of the above loan amounts shall be paid KRW 000,000, and KRW 00,000, each of the plaintiffs shall be divided by the share ratio, and each of the parties agreed to acquire the shares, and accordingly, the above loan was fully paid on or around January 2005. At the time BB acquired 5,00,000 shares of DD by exercising the stock option around August 2005, E acquired the shares of 13.8% of the total shares under the name of Y, and each of the plaintiffs was paid the shares of 428% of the above shares, and each of the plaintiffs was paid the shares of 13.8% of the above shares, and each of the investors was paid the shares of 428% of the above shares.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Articles 2(1) and 4 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) provide that a donee who has acquired any property without compensation due to another person’s donation shall be liable to pay gift tax. Article 2(3) of the same Act provides that the term “donation” means a comprehensive definition of the concept of donation by stipulating that the transfer of tangible and intangible property without compensation (including transfer of tangible and intangible property at a significantly low price) by direct or indirect means, or by increasing the value of another person’s property, regardless of the name, form, purpose, etc. of such act or transaction.

(2) In full view of the following circumstances acknowledged by comprehensively considering the overall purport of the pleadings, and each of the instant payments received by the Plaintiffs is deemed to have been donated from BB. Accordingly, the Plaintiffs’ assertion on a different premise is without merit.

① After acquiring 1 and 2 shares, HB was registered as a shareholder in the register of shareholders of DD until the sale thereof, and there was no change in the entry of the Plaintiffs on their shares in the future. Moreover, there was no circumstance that the transfer income tax following the sale of each of the above shares was reported and paid in the name of HB, and that the Plaintiffs participated in the payment of the said transfer income tax.

② 갑 제6 내지 10， 14， 15， 28호증(각 가지번호 포함)의 각 일부 기재에 의하면，㉠ 2005. 1. 10. 원고 임AA의 하나은행 계좌에서 CCCC의 신한은행 예금계좌로 000원이 입금된 사실，㉡ 2005. 6. 20. 원고 오EEE의 우리은행 예금계좌에서 소외 박FFF의 예금계좌로 000원이 입금된 사실，㉢ 위 박FFF은 2010. 12. 14. 원고들에게 "위 000원은 2005년 초에 원고 임AA에게 대여한 돈을 원고 오EEE 으로부터 수령한 것이다 라는 취지의 사실확인서를 작성하여 준 사실，㉣ 원고 오EEE 의 우리은행 예금계좌에서 2005. 7. 14. 000원， 2005. 8. 4. 000원이 임BB 의 국민은행 예금계화로 입금된 사실은 인정된다. 그러나 원고 오EEE과 임BB은 부부지간으로 1999년 혼인한 이후 현재까지 수시로 예금계좌를 통한 금전거래가 이루어져 왔고， 특히 2005년 1월경부터 2006년 6월경까지 임BB이 원고 오EEE의 예금계좌로 송금한 금액은 000원에 이르는 반면， 같은 기간 중 원고 오EEE이 임BB 에게 송금한 금액은 000원에 불과하여 오히려 임BB이 원고 오EEE에게 000원을 초과하여 송금한 사실이 확인되는 점， 원고 오EEE과 임BB이 2006. 1. 6.경부터 2010. 11. 1.경까지 원고 임AA의 예금계좌로 송금한 금액의 합계가 약 12억 원 이상에 이르는 점 등에 비추어 보면，앞서 인정한 사실만으로는 원고들이 임BB의 제1， 2 주식 취득과 관련하여 그 주장과 같은 액수의 자금을 투자하였다고 보기 어렵다.

③ The Plaintiffs asserted that, at the time of the receipt of the shares Nos. 1 and 2, the NA invested the acquisition fund and acquired shares equivalent to the investment ratio. However, there is no circumstance at all that the Plaintiffs had exercised rights as a shareholder, such as the right to claim dividends on the shares, voting right, and shareholder proposal right, for several years until the B purchased shares Nos. 1 and 2, and that the B had not been able to pay all the 1 and 2 shares acquisition funds even without the financial support of the Plaintiffs.

④ The Plaintiffs claim that their shares in the shares in the first and second shares are nominal trust to B for convenience. However, in order to reverse the presumption that the shareholders in the shareholder registry are shareholders in the company, the persons registered as shareholders in the shareholder registry have the burden of proof on the part of denying their shareholders' rights. In order to assert that the shareholders in the shareholder registry were trusted and that there are different shareholders in the real name as those in the name borrowed, the Plaintiffs must prove the facts of nominal trust at the part of claiming such title trust relationship (Supreme Court Decision 2007Da27755 Decided September 6, 2007), and the evidence submitted by the Plaintiffs alone is insufficient to acknowledge the facts of the above title trust, and there is no other evidence to support them.

(3) Therefore, the Defendant’s respective dispositions imposing the gift tax on the Plaintiffs on deeming that the Plaintiffs received the donation of each of the instant payments from NAB are lawful.

3. Conclusion

Therefore, each claim of the plaintiffs in this case is dismissed as it is without merit, and it is so decided as per Disposition.