Cho High-depth201Gu2507 ( November 24, 2011)

title trust for the purpose of tax avoidance

The purpose of the title trust is merely to claim that the trust was entrusted for convenience in the performance of the construction work, and not to submit evidence on what kind of assistance is in performing the construction work, and there is a tax avoidance purpose of global income tax, etc.

2012Guhap388 Revocation of Disposition of Imposing Gift Tax

XX

Head of Namgu Tax Office

June 13, 2012

July 13, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax of KRW 000 on the Plaintiff on December 8, 2010 shall be revoked.

1. Details of the disposition;

A. On February 19, 2008, as the representative director of the non-party company established for the purpose of new construction, sale and lease of apartment houses, the head of the Gu held the title trust of 5,000 shares of the non-party company to ASEAN head of the ASEAN, but on February 19, 2008, the above title trust was terminated, and 2,500 shares out of 5,000 shares of the above shares (hereinafter "the shares of this case") were fraudulent, and the remaining 2,50 shares were registered in the name of the plaintiff who is an employee of the non-party company, and the remaining 2,500 shares were registered in the name of DoCC, an employee of the non-party company.

(B) As a result of the tax investigation on the non-party company, the defendant paid 100% of the capital of the non-party company to the non-party company and owned 100% of the shares issued by the non-party company to the non-party company solely, and applied the legal fiction of donation under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act") by deeming that the non-party company held the title trust of the shares of this case for the purpose of tax avoidance, the defendant imposed and notified 00 won on the plaintiff on December 8, 2010 (hereinafter referred to as the "disposition of this case"). The plaintiff filed an appeal with the Tax Tribunal on June 29, 2011, but was dismissed on November 24, 2011.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2-1, Eul evidence 2-3, and the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

It is true that the Plaintiff received the title trust of the instant shares, but it is merely a trust received by the Plaintiff for convenience in carrying out the construction business of the non-party company, and it is unlawful to apply the provision on deemed donation under Article 45-2(1) of the Inheritance Tax and Gift Tax Act as it did not have the purpose

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

(a) In cases of property (excluding land and buildings) requiring a registration, etc. for the transfer or exercise of rights under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act, if the actual owner and the nominal owner are different, the value of such property shall be deemed to have been donated by the actual owner on the date when the actual owner and the nominal owner are registered, etc. as the nominal owner: Provided, That this shall not apply to cases where the property is registered, etc. in another person’s name,

The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle with the purport of effectively preventing the act of tax avoidance using the title trust system and realizing the tax justice. Thus, the proviso of the same Article is applicable only where the purpose of tax avoidance is not included in the purpose of the title trust, and the tax provided in the proviso is not limited to the gift tax, and the burden of proving that there was no purpose of tax avoidance in the title trust is against the person claiming it (see Supreme Court Decision 2004Du1421, Jun. 11, 2004). The nominal owner, who bears the burden of proof, has an obvious and obvious purpose of tax avoidance to the extent that there was no objective of tax avoidance in the title trust, and there was no tax avoidance at the time of the title trust or in the future. On the other hand, whether there was a purpose of tax avoidance should be proved as at the time of the title trust (see, e.g., Supreme Court Decision 200Du9684, Sept. 16, 2094).

B. In light of the same circumstances as the multiple-Eup, which is acknowledged by comprehensively taking account of the overall purport of the pleadings in each of the descriptions as evidence Nos. 2-1 through 3, evidence Nos. 2-2, evidence Nos. 3, and evidence Nos. 4-1 and 4-2, it is insufficient to recognize that each of the descriptions No. 2-1 and evidence Nos. 6-3 alone did not have the purpose of tax avoidance in the title trust of the stocks of this case, and there is no other evidence to acknowledge it, the Plaintiff’s assertion

(1) The Plaintiff asserts that the instant shares were received as a trustee for convenience in the performance of construction works of the non-party company. The Plaintiff did not submit evidence as to what kind of help the Plaintiff would be in the performance of its duties as the Plaintiff owned the instant shares.

(2) Since it is reasonable to deem that the title trust of the instant shares was a separate title trust from that of the previous title trust with respect to BB, whether the title trust of the instant shares was the purpose of tax avoidance should be determined at the time of the title trust of the instant shares.

(3) Around February 19, 2007, when Nonparty Company filed corporate tax returns on unsold apartment units in the year of 2007, underreporting about KRW 2.3 billion to the end inventory of the unsold apartment units, and by reflecting it as the construction cost, and was discovered by the Defendant, and accordingly, was subject to a disposition of imposition of corporate tax, etc. equivalent to KRW 1.2 billion in the business year of 2007. As of February 19, 2008, the title trust date of the shares in this case, the headA, the representative director of the Nonparty Company, was subject to the disposition of imposition of corporate tax, etc. equivalent to KRW 1.2 billion in the business year of 2007.

(4) Under the current income tax system, dividend income of unlisted stocks is subject to global income tax, and thus the progressive tax rate is applied. As such, the headA may avoid the progressive tax rate of global income tax on itself by title trust by title trust the instant stocks to the Plaintiff, which is written in the tax base of global income tax.

5. Conclusion

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