Cho-2014-China-4102 (2014-12.19)

illegal disposal that does not meet the taxation requirements for stock donation;

Since the tax authority bears the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of the tax imposition disposition, the tax authority should directly prove the facts of taxation requirements in the specific litigation process or clarify the presumed facts of taxation requirements in light of the empirical rule, and it cannot be deemed that the shares were donated in light of the

2014Guhap16941 Revocation of Disposition of Imposition of Gift Tax

Park 0

Head of Nowon Tax Office

July 16, 2015

September 10, 2015

1. The Defendant’s gift tax amounting to KRW 15,042,860 on September 12, 2013 (Additional Tax) for the Plaintiff for the year 2010.

The disposition of imposition of KRW 4,778,199 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The 00-company Co., Ltd. (hereinafter “00-company”) was established on December 10, 1993 and its principal business purpose is the spawn and waterproof construction business. The total number of its issued stocks was 10,500 shares (5,000 won per share) at the time of its establishment, but was changed to 70,500 shares on April 20, 2005 through capital increase for new shares.

B. The statement on the change of stocks, etc. submitted by the actual company at the time of filing a corporate tax return for the business year 2010 (hereinafter referred to as the "statement on the change of stocks, etc.") is stated as follows: (a) the total of 25,246 shares of the actual company (hereinafter referred to as the "stock of this case") during the pertinent business year from the b00, 200, 100, 200, 300, 300, 300, 300, 100, 200, 200 (hereinafter referred to as the "new holders") during the pertinent business year to the Plaintiff (hereinafter referred to as the "new holders of this case") as stated in the statement on the change of stocks, etc. submitted by the actual company at the time of filing a corporate tax return for the business year 2010 (hereinafter referred to as the "statement

[Attachment]

* The matters indicated in the overall protection of the court and the case number column refers to the court in which the case is being pending and its case number in accordance with the transport decision.

C. From May 6, 2013 to June 19, 2013, the director of the Samsung District Tax Office conducted an integrated investigation (hereinafter “tax investigation of this case”) with 00 companies, and confirmed whether the new holders paid the transfer price to the previous holders with respect to the transfer of the shares listed in the specification of stock fluctuation. The 00 companies explain that the facts of the change of shareholders listed in the above specification are not transfer, but gift. ① The 16,920 shares are desired to be distributed to the employees in the form of employee shares for the development of the company by boosting 16,920 shares; ② The 10-year confirmation letter stating that the 10-year employee shares were printed and affixed to the 160-year employee shares, and the 10-year employee shares were affixed to the 10-year employee shares, and the 10-year employee shares were affixed to the 20-year employee shares, and the 10-year employee shares were affixed to the 10-year employee shares.

D. The Head of Samsung District Tax Office’s subsequent title holders, including the Plaintiff, etc., on December 14, 2010

by deeming that each of the above shares has been donated, the new holders shall have jurisdiction over the domicile of the new holders.

[She] The notice of taxation data was given to each relevant head of the tax office (hereinafter referred to as the "head of the tax office") stated in the column of the tax office.

E. The chief of the competent tax office including the Defendant calculated the market price of the actual company’s shares at KRW 47,907 as of December 14, 2010 based on the supplementary assessment method prescribed by the Inheritance Tax and Gift Tax Act, and then imposed a gift tax on the new title holder as of September 12, 2013 (including the disposition of imposition of the first gift tax on the Plaintiff as of September 12, 2013) (including the Additional Tax Return 2,052,932, the Additional Tax Return 2,725,267, and the disposition of imposition of the gift tax on the Plaintiff as of December 14, 2010)

F. The new holders, including the Plaintiff, filed a request with the Tax Tribunal for a trial on the grounds of objection, around 2006, stating that “The new holders, including the Plaintiff, purchased each share of KRW 21,721 shares of KRW 21,721 shares from KRW 328,50,00 from KRW 00, KRW 328,50,00, KRW 217,210,00, respectively, and actually owned the shares without completing the change of ownership from the previous holders, only submitted a detailed statement of change of shares, as if the shares of this case were transferred to the new holders from the previous holders.”

G. On April 28, 2014, the Tax Tribunal rendered a decision that “The tax base and tax amount should be corrected according to the result of re-examination as to whether 00,000 had acquired the instant shares with compensation from 00, etc., and the remaining claims are dismissed.”

H. Accordingly, the head of Samsung District Tax Office re-examineed the shares from June 9, 2014 to July 4, 2014, and deemed that the shares of this case were transferred from 100 to x, not from 6,211 to x, but from 100 to 200, the remaining 19,035 shares (25,246 shares - 6,211 shares) among the shares of this case constitutes a transfer at a low price among the related parties, and notified the head of the competent tax office of taxation by deeming that the previous holders were donated to the new holders, as it was based on the initial disposition of gift tax.

(i) The head of the competent tax office’s results of re-audit, on July 17, 2014, that the initial imposition of gift tax (excluding the portion on which gift tax was imposed on the same 6,211) is justifiable for new holders.

The notice was given by the Director of the Tax Office (the Director of the Tax Office) as the reason for the disposition of gift tax.

The part to be transferred at a low price was changed to the reason for disposal, and the part to be reduced or corrected was reduced or corrected, and the x did not object to the above reduction or correction.

(j) The new holders including the Plaintiff filed a request for an inquiry with the Tax Tribunal on December 19, 2014, respectively, around the date of notification of the results of the reexamination.

(k) On September 24, 2014, the Plaintiff filed the instant lawsuit, and the remainder of the new holders of the case also around that time.

A lawsuit seeking revocation of the imposition of each gift tax is pending in the court (the case).

The court and the case number shall be the same as the relevant column.

[Ground for Recognition: Facts without dispute, Gap evidence Nos. 1, 2, 5 through 11, Eul evidence Nos. 1 through 5, purport of whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

Around 2006, Kx purchased the instant shares, etc. from the previous holders, including purchase of 21,721 shares of an enterprise from 100 to 328,50,000, and 21,721 shares of an enterprise from 100 to 217,210,00, and held the instant shares under the name of the previous holders without completing the transfer of ownership after paying the purchase price. At the time of reporting the corporate tax in 2010, the instant shares were submitted by stating that the instant shares were transferred to the new holders from the previous holders during the pertinent business year without obtaining the consent of the new holders, including the Plaintiff at the time of reporting the transfer of ownership. At the time of the instant tax investigation, the instant shares were falsely prepared and submitted as if the previous holders and the new holders were to have been donated on December 14, 2010. In other words, the actual owners of the instant shares are not only one of the instant shares but also one of the instant shares donated from 00.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Generally, since the tax authority bears the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of a tax imposition disposition, the tax authority should directly prove the facts of taxation requirements in the specific litigation process or clarify the presumed facts of taxation requirements in light of the empirical rule (see Supreme Court Decision 97Nu13894, Jul. 10, 1998). In light of the aforementioned legal principles, we examine whether the Plaintiff received the gift of the instant shares from 00, December 14, 2010.

2) The facts that the instant shares were transferred from 00 to the Plaintiff during the business year 2010 are stated in the statement on the change of shares are as seen earlier. In addition to the overall purport of the facts of recognition and evidence evidence examined earlier, the instant shares were 00 of the actual owners of the shares held in the name of 14 December 2007 by 200 to 200. The facts that the Plaintiff did not pay any price for the instant shares to 200. Furthermore, there is no dispute between the parties that the name of 00 is affixed on the right side of the printed portion of the 00 verification document, and thus, it is presumed that the Plaintiff’s signature was transferred to the Plaintiff during the business year 200, and the establishment of the entire verification document pursuant to Article 358 of the Civil Procedure Act is presumed to have been presumed to have been based on 00,000,0000 shares before and after the issuance of the 300,000,0000 shares of the Plaintiff’s real shares.

3) However, in light of the following circumstances, the above facts alone are insufficient to recognize that the Plaintiff received a donation of the instant shares from 00 on December 14, 2010, and there is no other evidence to prove otherwise.

① All new holders, including the Plaintiff, are arguing that the instant shares were not donated from the existing holders, and are dissatisfied with the imposition of gift tax. However, considering the value of the instant shares and the amount imposed on the gift tax, if the new holders were to have actually received the instant shares from 00, there seems to be no reason to deny the donation.

② There are sufficient circumstances to suspect whether the new holders including the Plaintiff (except for 00) are the actual holders of the instant shares. In other words, the said new holders were unaware of the details of the instant statement of stock fluctuation before the instant tax investigation was conducted.

Also, there is also a circumstance to deem that the said new holders exercise voting rights or received dividends.

does not appear.

③ According to the Defendant’s disposition, on December 14, 2010, 00, 236,421,045 won, 168,872,175 won, 168,875 won, 00, and 101,323,305 won, Kim 00, and 67,548,870 won, respectively, are donated 00 shares of a company to Kim 00, respectively, thereby losing the status of the largest shareholder of 00. However, it is difficult to find any special motive or reason to donate the shares of this case to the new title holder, who is an employee of a company, who is neither a relative nor a representative director, and who is no longer employed as the representative director, as seen earlier, at the time of December 14, 2010 (and, as seen earlier, 00 also did not constitute an employee of a company at the time of December 14, 2010).

④ There are circumstances in accordance with the Plaintiff’s assertion that 100 had been able to operate a lost company on its own continuously, and that 100 had been able to have transferred the instant shares to 100,000. In other words, 00 was 66 years old as of the date of birth on the resident registration at 2006, and 2.77 million won and 3.4 million won in the business year 2005, respectively, but around 2.9 billion won and 8.5 million won were 1.6 years old as of January 1, 2006, 200 had been 10,000,000 won and 2.3 years old as of January 1, 2006, 200 that had been 10,709,0000 shareholders and 10.6 years old as of January 26, 2006, 200 had been 10,000 shares of a lost company.

⑤ On September 30, 2010, 100 paid directly the amount of gift tax imposed on a new title holder, excluding himself, with the amount of money borrowed from a corporate bank. However, as alleged by the Defendant, the former title holder donated the instant shares to the new title holder, and if the former title holder does not have any relation to the instant shares (excluding 1,410 shares, which stated that the shares were transferred from 00 to 1,410 shares), there is no special reason to pay the gift tax imposed on the new title holder, excluding himself/herself. Korea is sufficient to deem that the former 00 shares were actually purchased from 00 and that the gift tax imposed on the new title holder, who is an employee, is liable for and paid the said tax unfairly imposed on the new title holder.

(6) According to the results of the reinspection of Samsung tax secretary, 6,211 shares in the name of Hanx were transferred not to 00 but to 100 shares, and the follow-up disposition was made under this premise without permission. The contents of Hanx certification are contrary to this, and thus its credibility was considerably damaged. This 00 certificate was prepared in the same form as above and submitted to the same other party. In addition, this 00 certificate stated that shares were donated to 00 employees for the purpose of boosting the morale of the employees. According to the detailed statement of stock change in this case, the transfer of shares was completed on December 14, 2010. According to the new statement of stock change, Kim 00 was not a 00-company employee at the time of December 14, 2010 (refer to the evidence No. 14 of March 2, 201). Moreover, it is difficult to view that the employees were 000-party employees to acquire new shares in the name of the employee under the name of the employee under the Labor Welfare Association.

⑦ 한00이 이00, 한xx에게 주식양도대금을 지급하였다는 점을 뒷받침할 수 있는 금융자료도 존재한다. 즉, ㉠ 한00은 2006. 4. 24.부터 2006. 10. 30.까지 이00명의의 00은행 계좌(xxx-xx-xxxxx)로 별지 1 기재와 같이 합계 228,500,000원을 입금하였다. 그런데 위 00은행 계좌에 연결되어 있는 이00 명의의 통장은 2013. 8.29. 이00의 주소지(고양시 00구 00동 787 00마을 000동 1501호)와 인접한 00은행 00마을지점에서 재발행되었고, 이00은 00기업 대표이사직을 사임한이후에도 계속하여 위 계좌를 통하여 국민연금을 지급받고, 보험료, 카드대금, 신문구독료, 주민세 등을 납부하고, 위 계좌를 통하여 가족들과 입출금 거래를 하고 있는 점, 주식회사가 그 직원이 아닌 대표이사 명의로 차명계좌를 개설하는 것은 흔치 않은 점, 위 계좌가 00기업의 계좌라면 한00이 어떠한 이유로 위 계좌에 거액을 입금하였는지를 합리적으로 설명할 수 있는 사정도 나타나지 않는 점 등에 비추어 보면, 위 00은행 계좌는 피고 주장과 같이 00기업이 이00 명의로 보유하고 있는 차명계좌가아니라 이00이 실질적으로 소유・관리하는 계좌로 보인다. ㉡ 한00은 2007. 1. 11.00기업의 대표이사 자격으로 이00에게 발행인 '00기업', 지급기일 '2010년 12월31일'로 된 액면금 1억 원짜리 약속어음을 발행하였다가 이00 명의의 위 00은행계좌에 2011. 1. 3. 신규 명의인들 중 김00 명의로 4,935만 원, 김00 명의로 1,410만 원, 전00 명의로 3,525만 원, 이00 명의로 130만 원의 합계 1억 원이 무통장 입금된 직후(이하에서 김00, 김00, 전00, 이00의 4인의 신규명의인을 '김00 외 3인'이라 한다) 이00로부터 위 어음을 반환받았다. 그런데 한00은 관련사건에서 자신이 개인적으로 부담하는 양도대금 지급을 위하여 위 어음을 발행하였다고 증언하였는바(갑 제40호증), 위 증언에 따르면, 한00은 개인 채무의 지급을 위하여 자신이 대표이사로 재직하고 있는 회사 명의로 약속어음을 발행한 것이어서 형법 제356조가 정한 업무상 배임죄의 구성요건에 해당한다고 할 것인데, 한00이 형사처벌을 받을 수 있는 불이익을 감수하고서 한 위 증언의 신빙성을 가볍게 배척하기 어려운 점, 주식회사는 이를 운영하는 자연인과는 구분되는 별개의 법인이므로 그 재산도 엄격하게 구분하여 관리해야 함에도 불구하고 현실적으로 주식회사를 실질적으로 운영하는 지위를 이용하여 마치 그 회사가 개인기업인 것처럼 임의로 그 자금을 인출해 사용하는 전근대적인 행태가 아직까지 엄연히 존재하는 점, 위 어음 발행 당시 00기업이 이00에 대하여 어떠한 원인채무를 부담하고 있었다고 볼 만한 사정도 나타나지 않는 점 등에 비추어 볼 때, 위 어음은 00기업이 아니라 한00 개인의 이00에 대한 주식 양도 대금 채무 지급을 위하여 발행된 것으로 보인다. 그리고 김00 외 3인 명의로 1억원이 입금된 시기가 위 어음상의 지급기일과 근접한 점, 이00이 위 1억 원을 입금받은 직후 한00에게 위 어음을 반환한 점, 김00 외 3인이 이00에게 1억 원을 입금하여야 할 사정이 있었다는 점에 관하여 피고의 아무런 주장, 입증이 없는 점 등에 비추어 볼 때, 한00은 김00 외 3인 명의로 이00에게 1억 원을 입금하여 주식 매매대금을 지급한 것으로 보인다(피고 주장대로 위 1억 원이 한00이 이00에게 지급한 금원이 아니라면, 김00 외 3인이 위 금원을 이00에게 지급한 것으로 볼 수밖에 없는데, 피고 과세논리대로 김00 외 3인이 이00으로부터 실리기업 주식을 증여받은것이라면, 이00에게 어떠한 형태로든 그에 대한 대가를 지급할 이유가 없다). ㉢ 한00은 한xx 명의의 농협 계좌로 2006. 1. 20.부터 2008. 7. 3.까지 별지 2 기재와 같이 합계 2,980만 원을 입금하였다.

4) Therefore, the instant disposition ought to be deemed an unlawful disposition that fails to meet the taxation requirements.

3. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per Disposition.