Seocho 2014west 2260 ( October 16, 2015)

Whether the title trust agreement of the instant shares exists

If the tax authority proves only that the actual owner is different from the nominal owner, the verification that the registration, etc., to the nominal owner was made by the unilateral act of the actual owner, regardless of the intent of the nominal owner, shall be made by the nominal owner who claims it.

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

2015Guhap57284 Revocation of Disposition of Imposition of Gift Tax

AA

○ Head of tax office

October 30, 2015

December 18, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of gift tax of KRW 000,000,000 against the Plaintiff on March 12, 2014 is revoked.

1. Details of the disposition;

(a) Tax investigation and notification of taxation data;

From September 25, 2013 to November 25, 2013, the director of the Seoul Regional Tax Office confirmed that BB registered the shares of the instant company in the name of the Plaintiff on June 5, 2012 (hereinafter “instant shares”) in the name of the Plaintiff and notified the Defendant of the taxation data by deeming BB as the title trust of the instant shares to have been reported to the Plaintiff.

(b) Disposition of imposition;

On March 12, 2014, the Defendant deemed that the Plaintiff donated the instant shares pursuant to Article 45-2(1) of the Inheritance Tax and Gift Tax Act. On June 5, 2012, the date of transferring the ownership of the instant shares, the Defendant deemed the amount calculated by multiplying the average of the closing price per share by the number of the instant shares as the donation value, and issued a disposition imposing KRW 00,000,000,000, which is the tax amount calculated by multiplying the tax rate by 30%, by the additional tax for the faithful return and payment (hereinafter “instant disposition”).

(c) Procedures of the previous trial;

On March 27, 2014, the Plaintiff, who was dissatisfied with the instant disposition, requested an inquiry to the Tax Tribunal, but was dismissed on January 16, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The absence of a title trust agreement

In February 2012, the Plaintiff decided to take office as a professional manager of the instant company upon the request of BB, CCC, etc., and lent the title to the Plaintiff’s share purchaser. However, there is no agreement to register the instant shares in the Plaintiff’s name. There is no specific content of the agreement between the Plaintiff, BB, and CCC on title trust, i.e., the number, time, and conditions of title trust shares, and there is no agreement between the Plaintiff and BB, and CCC, and thus, the instant disposition based on the premise that the title trust relationship was established is unlawful.

2) The de facto holder of the instant shares at the time of transfer.

BB and CCC had already offered or sold all the shares of the instant company, including the instant shares, as collateral to the bond company before June 5, 2012, and thus, BB and CCC are not the actual owners of the instant shares, and therefore, the Plaintiff cannot be deemed to have been placed under title trust with BB and CCC.

3) Appraisal of the value of the instant shares

Even if a title trust agreement existed between the Plaintiff, BB, and CCC, and the Plaintiff received the instant shares under title trust, the standard date for appraisal of the instant shares shall be deemed February 2, 2012, which is the date of the conclusion of the title trust agreement, and the value of the instant shares is KRW 0,000 per share, and thus, the value of the instant shares should be assessed based on such basis. Accordingly, the assessment of the tax base for the instant disposition was erroneous.

B. Relevant statutes

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

C. Determination

1) Facts of recognition

A) Around November 201, 201, DDR, the largest shareholder of the instant company, decided to sell the instant company, which is a listed company, and issued an order to sell the instant company to ○○○○○, which was the executive director of the instant company. While ○○ was colored through an outside director Kim○’s account, it was decided that DDR and its related parties were transferred the shares of the instant company at KRW 0,000,000 and the management rights of the instant company, which were owned by D and its related parties at KRW 0 billion, around January 2012, 200 to ○○○○ on the date of concluding a provisional general meeting of shareholders for the transfer of management rights, and the balance shall be paid each on the day immediately before the date of holding a provisional general meeting of shareholders for the transfer of management rights.

B) During 0 billion won of the acquisition price, the ○○○○, who was aware of an investor who will invest in the acquisition price, decided to jointly take over the acquisition price by preparing and jointly taking over the acquisition price. Gab○ also sought a joint acquisition from BB and CCC on January 2012, 201, on the ground that Park○ may raise more than half of the acquisition price.

C) BB and CCC shall take over the instant company jointly with Park○-○, by obtaining a loan from the bond company known to them as collateral or by selling the acquired shares to financial investors. However, the Plaintiff, a part of CCC, as a transferee, was to enter into a contract on the ground that he/she was the transferee. The Plaintiff entered into a contract on the acquisition of shares and management rights under his/her own name and was to take charge of the representative director of the instant company.

D) Around February 2, 2012, at the office of ○○, a law firm located in Seoul, and at the transferor’s side, ○○, a proxy of DD, participated in the transfer. On the transferee’s side, ○○, a ○○○, an agent of DD, and ○○○○, a ○○○○○, and ○○○○, a five other DD, while attending the Plaintiff, Ansan○, and ○, assigned ○, and ○○, an amount of KRW 000,000 of the company’s shares of the company of this case to ○○○, an amount of KRW 00,000,000 of the company’s shares to ○○○, a contract for acquisition of shares and management rights (hereinafter referred to as the “instant contract for acquisition by transfer”) was entered into between BB and CCC, and the Plaintiff paid KRW 300,000,000,000 to ○○.

E) BB and CCC agreed on the acquisition of the instant company on the burden of KRW 0 billion to be paid in March 29, 2012 according to the instant contract, and on the burden of KRW 0 billion to be borne by Park○ and half, and on the other hand, they failed to raise funds, upon request for change of the method of payment to Park○ and the transferor. On March 21, 2012, the intermediate payment of KRW 0 billion was paid on March 28, 2012, and the balance of KRW 0 billion was paid on June 29, 2012, and the instant company acquired the instant company. Meanwhile, BB and CCC agreed on the waiver of the acquisition of the said KRW 0 billion from the side on which the joint underwriters and CCC did not take over the said KRW 0 billion until the due date for the payment of the said KRW 00 billion, but ○○ agreed on the waiver of the down payment by 00 billion on March 27, 2012.

F) BB and CCC decided to offer the instant company’s shares as collateral to the bond company or to sell the company’s shares to the financial investors, and upon preparing KRW 0 billion for the revised payment method, paid KRW 0 billion to DD through ○○ on March 27, 2012 and March 28, 2012. Accordingly, it received delivery of KRW 0,000,000 of the company’s shares to the bond company Kim○○ as collateral, and sold KRW 0,000,000 among them to the financial investors. On March 29, 2012, BB and CCC delivered KRW 00,000 out of the remaining shares to Kim○○ as collateral for the company’s shares borrowed on January 30, 2012.

G) BB and CCC received 249,157 shares of the instant company from DD through ○○ on March 29, 2012. Of them, 000,000 shares among them were delivered to DD by means of the above method, either as security or as sales to financial investors, and then delivered KRW 00,000,000 to DD out of KRW 00,000,000,000,000, which were raised to BB and CCC. DD again paid this as the refund of down payment to ○○.

H) The Plaintiff was appointed at the general meeting of shareholders of the instant company held on March 30, 2012, and was registered as the representative director of the instant company on April 5, 2012.

(i) BB and CCC raised from financial investors through the foregoing method on April 25, 2012, through E○○○, paid KRW 000 billion out of KRW 000,000,000,000 to DD as a part of the balance, and sold 00,000 shares of the instant company corresponding thereto to financial investors. BB and CCC purchased KRW 00,000,000,000 out of the total amount of KRW 0,000,000,000,000, which was raised from Kim○ by the same method as above, from ○○○ through delivery of KRW 00,000,000 of the instant company’s shares to DD as collateral.

(j) Ultimately, during the period from March 27, 2012 to May 9, 2012, CCC and BB received 0,000 shares of the instant company owned by DD et al., and paid 0 billion won out of the total amount of KRW 000,000,000,000, which was offered as security to the bond company or sold to the financial investors, as above, to DD for acquisition price.

(k) On June 5, 2012, the Plaintiff: (a) drafted a modified contract, and signed and sealed the content of the instant contract and the instant modified contract on two occasions; and (b) included that the Plaintiff’s transfer of the shares to the assignee, including the Plaintiff, at the time of June 5, 2012, at high ○○○, ○○, ○○, ○○, and ○○○○, a stock company, and ○○○, a stock company, other than DD except for DD. among the transferor.

Other) BB and CCC decided to close the list of shareholders on July 6, 2012 after acquiring the right of management on the date of June 7, 2012, and decided to register the remaining shares except the shares sold to financial investors. During this process, the Plaintiff entered 00,000 shares out of the instant shares in the register of shareholders in the Plaintiff’s name on June 5, 2012.

(m) The Plaintiff received a total of KRW 00,000,000 from March 30, 2012 to June 7, 2013, which served as the representative director of the instant company.

[Reasons for Recognition] Unsatisfy, Gap evidence 2, 3, 5, 6, 10, 11, 12, 13, Eul evidence 1, 2, 3, Eul evidence 4, 5, Eul evidence 6-1, 7-2, 8, 9, Eul evidence 10-1, 2, and 10-2, Eul evidence 10-2, and the purport of the whole pleadings

2) Agreement on title trust

A) The provision on deemed donation under Article 45-2(1) of the Inheritance Tax and Gift Tax Act shall apply in cases where, in order to transfer or exercise the right, the actual owner and the nominal owner register in the name of the nominal owner under an agreement or communication. As such, 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 which case the actual owner and the nominal owner register in the name of the nominal owner. In such cases, if the tax authority proves only that the actual owner is different from the nominal owner, the burden of proving that the registration, etc. in the name of the actual owner was made in the unilateral act of the actual owner regardless of the intent of the nominal owner should be borne by the claiming owner

B) In light of the above legal principles, it is not sufficient to recognize that BB and CCC unilaterally stolen the Plaintiff’s name regardless of the Plaintiff’s intent and transfer of the instant shares. There is no evidence to acknowledge otherwise.

Rather, in full view of the facts acknowledged earlier, the Plaintiff delegated BB and CCC with the acquisition of the instant shares, including the instant shares under the Plaintiff’s name, and the BB and CCC had prepared various documents necessary for the acquisition of the instant shares under the Plaintiff’s name and made payment for the acquisition of the shares. Since the fact that the instant shares were the representative director of the instant company at the time when the instant shares were transferred under the Plaintiff’s name was recognized, it is sufficient to view that there was an implied title trust agreement between the Plaintiff and BB and CCC, even without proof as to the amount and time of the shares to be transferred under the Plaintiff’s name. The Plaintiff’s assertion is without merit.

3) The de facto holder of the instant shares at the time of transfer.

Comprehensively taking account of the facts acknowledged earlier, BB and CCC may recognize that the Plaintiff acquired 0,000,000 shares of the instant company by lending the Plaintiff’s name, and then by selling them to the bond company Kim○, etc. as collateral or by selling them to the financial investors.

However, in full view of the facts acknowledged above, BB and CCC did not sell to the financial investors of this case out of 0,000,000 shares of the company of this case which were acquired from DD and offered as security to the bond company at least 0,00,000 shares (=0,000 shares +00 +00,000 shares +00 shares). The actual owner is still BB and CCC because the shares of this case which were transferred under the name of the plaintiff are "those offered as security to the bond company company as above or those offered as security to the bond company or not sold to the financial investors." Thus, the plaintiff's assertion is without merit.

4) Appraisal of the instant shares

Article 45-2(1) of the Inheritance Tax and Gift Tax Act provides that, in cases where the actual owner of an asset necessary for a transfer or exercise of the right and the nominal owner are different, the value of the asset shall be deemed to have been donated to the actual owner on the day when the registration, etc. is made to the nominal owner. Article 60(1) of the Inheritance Tax and Gift Tax Act provides that “The value of the asset on which the gift tax is levied under this Act shall be based on the market price as of the date of donation. In such cases, the value of the asset assessed under Article 63(1) 1(a) and (b) shall be deemed to be the market price.” Therefore, it is reasonable to evaluate the shares of this case as of June 5, 2012, on which the date when the transfer to the title holder deemed to have

Furthermore, since the instant shares are shares of the instant company, a KOSDAQ-listed corporation, pursuant to Article 63(1)1(b) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11845, May 28, 2013) and Article 53(2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24697, Aug. 27, 2013), it is reasonable to evaluate the instant shares as the average daily market price at the Korea Exchange prices published every two months before and after the base date of appraisal under Article 63(1)1(a) of the same Act, and the Plaintiff’s assertion against this is without merit.

5) Sub-decisions

The instant disposition is lawful, and the grounds for illegality alleged by the Plaintiff cannot be accepted.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.