Early High Court Decision 2016Du3880 and 3881 (Law No. 26, 2017)

Whether property held in title trust is deemed donated

The case holding that since the Plaintiff was a de facto owner of the entire shares issued by the instant company, the disposition under the deemed donation of title trust property is lawful.

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

2017Guhap82529 Revocation of Disposition of Imposition of Gift Tax

AA

○ Head of tax office

June 21, 2018

July 19, 2018

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 imposing KRW 0,00,000,000, which was imposed on the Plaintiff on June 8, 2016, and KRW 0,000,00,000, which was imposed on the Plaintiff in 2004, shall be revoked.

1. Details of the disposition;

A. From October 27, 2009 to August 29, 2004, the Plaintiff was a person who served as the representative director of ○○○○○ Incorporated Company (hereinafter “instant company”) established on August 2, 2004 for the purpose of plastic manufacturing, etc. BB is the Plaintiff’s spouse; CCC is the Plaintiff’s spouse; CB is a director of the instant company from October 29, 2015 to the Plaintiff’s children; DD and EE is the branch director of BB; DD is from August 2, 2007 to August 2, 2010; and EE is a director from October 29, 2012 to October 31, 2017 to October 31, 2010, respectively.

B. The details of the issuance of shares at the time of the incorporation of the instant company and the details of changes in the ownership status of shares thereafter are as follows (i.e., 1,500 shares issued by DD on August 2, 2004 at the time of incorporation of the instant company; ii,500 shares transferred from E on January 30, 2009; ii 2,500 shares transferred from E on January 30, 2009; hereinafter referred to as 'the instant shares' by adding each of the above shares).

C. The director of the Central Regional Tax Office, from April 25, 2016 to May 24, 2016, conducted an investigation into stock change (hereinafter “tax investigation of this case”) with respect to the plaintiff et al., notified the plaintiff to impose gift tax pursuant to the provisions of Article 45-2(1) of the Inheritance Tax and Gift Tax Act (hereinafter “former Inheritance Tax and Gift Tax Act”) on the ground that the plaintiff title trust 1,500 shares of this case with DDR on August 2, 2004, and on the same day, 2,50 shares of this case out of 4,00 shares of the company of this case title trust with EE under title trust with DDR again on January 30, 209.

D. On June 8, 2016, the Defendant decided and notified DD of KRW 0,00,000, gift tax on the title trust of the instant shares in 2004 and KRW 0,000,000, gift tax on the title trust of the instant shares in 2009. On the same day, the Defendant designated the Plaintiff as a joint and several taxpayer pursuant to Article 4(5) of the former Inheritance Tax and Gift Tax Act, and notified the Plaintiff to pay KRW 0,000,000, gift tax on the year 2004 and gift tax on the year 209 (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an objection with the director of the Seoul Regional Tax Office on July 8, 2016, but was dismissed on September 29, 2016, and filed an appeal with the Director of the Tax Tribunal on January 3, 2017, but was dismissed on July 26, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) At the time of the establishment of the instant company, 6,000 shares out of 10,000 shares issued by the Plaintiff and the rest of 4,000 shares were each acquired by the CCC, and the acquisition amount was paid by the BB. After which the Plaintiff acquired shares 6,00 shares each of FF and DD names, 4,500 shares, 1,500 shares that were acquired by the CCC, and 4,000 shares that were acquired by the CCC were acquired in the name of EE. Accordingly, even though 4,00 shares issued to EE are irrelevant to the Plaintiff, the Defendant deemed that the Plaintiff actually paid the purchase price of shares issued by the instant company to EE, and that the instant disposition was unlawful.

2) At the time of the establishment of the instant company, the Plaintiff was entrusted only to D, etc. with the name of the instant company’s shares in accordance with the advice of a certified judicial scrivener that the Plaintiff, who is a bad credit holder, BB, the Plaintiff’s family member, and the third party as a shareholder, and there was no intention of tax avoidance. Although there was no tax evasion, the Defendant’s disposition against the Plaintiff was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) A total of KRW 00,00,000 was withdrawn from the account in the name of GG, etc. and deposited in the account in the name of FF as of the same day. On August 2, 2004, the amount of KRW 00,000 was withdrawn from the above account in the name of FF on August 3, 2004, and deposited KRW 100,000 into another account in the name of FF on August 3, 2004. On August 5, 2004, the amount of KRW 100,000,000, which appears to be the acquisition price of the shares of the instant company from another account in the name of FF on August 5, 2004, was transferred to the account in the name of the said company.

2) The content of the text answers received from Plaintiffs, CCC, DD, and F in the course of the instant tax investigation is as follows.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5 through 7, Eul evidence Nos. 2 and 6 through 9 (including each number), the purport of the whole pleadings

D. Determination

1) Whether the Plaintiff held the title trust of the instant shares to DD

In full view of the following circumstances, it is reasonable to view that the Plaintiff, as the actual owner of the entire shares issued by the instant company, trusted the remaining shares, including the instant 2 shares, to DD at the time of the establishment of the said company, each of the EE and FF, and that the title trust of the instant 2 shares, a title trust of the EE and F, which had been trusted to EE, was made to DD in the form of transfer. Accordingly, the Plaintiff’s assertion on this part is without merit.

① From the time of the instant tax investigation, the Plaintiff recognized the fact that 1,500 shares out of 10,000 shares issued at the time of the instant tax investigation were each nominal trust with DD, 4,000 shares to EE, and 4,500 shares were each nominal trust with FF, among them, the actual owners of 4,500 shares title trust with DD are the Plaintiff, and the Plaintiff was the actual representative of the said company from the time of the establishment of the instant company, and the actual owner of 4,500 shares issued at the time of the instant tax investigation was stated to EE as CCC, but did not submit any materials to prove that they were owned by the FF on December 27, 2013. The CCC also stated that 4,000 shares of the instant company, which were transferred from FF, but failed to submit any materials to prove this.

② DD acknowledged the fact that the instant shares were held in title trust by the Plaintiff in the course of the instant tax investigation. On January 30, 2009, DD stated that the actual owners of the instant shares that were acquired from EE were known to the Plaintiff or CCC, and FF stated that the actual owners of the instant shares were known to the Plaintiff in the course of the said tax investigation, and that FF was held in title trust by the Plaintiff.

③ 원고는, 이 사건 회사의 설립 당시 발행된 주식 10,000주 중 6,000주는 원고가, 나머지 4,000주는 CCC이 취득하기로 하고, 그 인수대금을 자신이 아닌 BBB가 GGG, GGA, GGB, GGC 등의 계좌를 이용하여 모두 납입하였다는 취지로 주장한다. 그러나, ㉠ BBB는 2016. 7. 18. 현재까지 전국은행연합회에 채무불이행에 따른 관리대상으로 등록되어 있었고, 원고의 주장에 의하더라도 BBB는 이 사건 회사 설립 당시 신용불량 상태였다는 것인 점, ㉡ 위와 같은 상태에 있던 BBB가 어떠한 경위로 이 사건 회사 발행 주식의 인수대금을 마련하여 납입한 것인지 알 수 있는 자료가 전혀 존재하지 않는 점, ㉢ BBB가 주식 인수대금을 납입하기 위하여 사용하였다는 계좌의 명의자들은 BBB와 관련이 없는 원고의 지인이거나 원고의 동생들인 점, ㉣ 원고의 위 주장에 부합하는 듯한 증거로 GGG, GGD, GGB, GGC, BBB, EEE 작성의 각 사실확인서(갑 제8호증의 1 내지 5, 갑 제9호증)가 존재하나, 위 각 사실확인서의 내용은 작성자들과 원고와의 관계 등에 비추어 이를 그대로 믿기 어렵거나 그 내용만으로 BBB가 이 사건 회사 발행 주식의 인수대금을 납입하였다고 인정하기 어려운 점 등을 고려할 때, 원고의 위와 같은 주장은 받아들이기 어렵다.

④ Furthermore, according to the Plaintiff’s assertion, the Plaintiff and CCC donated the shares issued by the instant company and the acquisition price thereof from BB. In relation thereto, there is no fact that CCC returned and paid gift tax in relation thereto, and there is no objective data to deem that the Plaintiff and CCC donated the shares issued by the instant company and the acquisition price thereof from BB (no evidence exists to deem that CCC received the shares issued by the instant company from the Plaintiff). Furthermore, at the time of the establishment of the instant company, CCC did not have an economic ability to acquire the shares issued by the said company independently as a university student under the age of 19.

⑤ DD was dissatisfied with the Defendant’s imposition of gift tax in relation to the instant shares and filed an appeal with the Tax Tribunal. However, DD was dismissed on July 26, 2017, and the said imposition of gift tax became final and conclusive as it did not file an administrative lawsuit within the filing period.

2) Whether the Plaintiff did not have the purpose of tax avoidance

A) The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to effectively prevent tax avoidance by using the title trust system and realize the tax justice. Thus, the proviso of the same Article is applicable only where the purpose of tax avoidance is not included in the title trust. In such a case, the burden of proving that there was no purpose of tax avoidance is against the title claimant (see, e.g., Supreme Court Decisions 9Du2192, Jul. 23, 199; 2003Du13649, Dec. 23, 2004). Therefore, it is reasonable to prove that there was no purpose of tax avoidance, other than the purpose of tax avoidance (see, e.g., Supreme Court Decision 200Du733, May 12, 2006). Furthermore, it is reasonable to determine whether the pertinent property was donated to the extent that there was no objective and objective purpose of tax avoidance in the name of the title trust, and whether there was no possibility of tax evasion in the future.

B) Comprehensively taking account of the following circumstances acknowledged by the facts acknowledged as above and the purport of the entire pleadings, the circumstance and evidence presented by the Plaintiff alone are insufficient to acknowledge that the Plaintiff did not have the purpose of tax avoidance in relation to the title trust of the instant shares. The Plaintiff’s assertion on this part is without merit, inasmuch as there is no evidence to acknowledge otherwise.

① The Plaintiff was not subject to secondary tax liability of oligopolistic shareholders under Article 39 subparag. 2 of the Framework Act on National Taxes by title trust with the entire shares issued by the instant company, including the instant shares, to DD, EE, and FF.

② The Plaintiff, as a result of each title trust with DD, EE, and FF of the entire shares issued by the instant company including the instant shares, became entitled to a lower tax rate even if the future dividend income accrues. The mere fact that there was no tax evasion due to the failure to pay dividends until the time of the instant disposition, the Plaintiff cannot be said to have no tax avoidance purpose.

③ At the time of the establishment of the instant company, the Plaintiff asserted that a certified judicial scrivener in charge of the instant business, who recommended the acquisition of shares in the name of another person, not a family member of BB, who was a bad credit holder, was in title trust. However, it is difficult to recognize the necessity of title trust to DD, EE, and FF for the entire issuance of shares of the instant company, including the instant shares, inasmuch as it was difficult to recognize the need for title trust, and otherwise, the Plaintiff had a clear purpose irrelevant to the tax avoidance or tax avoidance in the title trust of the instant shares, etc., and there was no tax evasion or tax evasion in the future.

④ After the establishment of the instant company, 4,000 shares of the said company, including 2,500 shares, were transferred to CCC. The Plaintiff appears to have avoided gift tax by title trusting all the shares issued by the instant company, including the instant shares, to DDR, and by taking the form of transfer of 4,000 shares from the title trustee to CCC.

3. Conclusion

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