2013Guhap61319 Revocation of Disposition of Imposition of Gift Tax

1. Stambed ○

Ulsan-gu Mo-dong Mool Park Park Dol-dong 202 Dong 902

2. Park △△△; and

Seongbuk-gu Seoul Seongbuk-dong 15 - 11

[Defendant-Appellant] Plaintiff 1

Attorney Kim Dong-han

1. The director of the Gangnam Tax Office;

2. The director of the competent tax office.

3. The director of the tax office on strike.

4. The director of the tax office concerned.

5. The director of the Tax Office for Future Life;

6. The director of the Seodaemun Tax Office.

7. The head of the same tax office.

8. The director of the Seongbuk-do tax office.

The Defendants’ Litigation Performers

May 15, 2014

June 26, 2014

1. The Defendants’ imposition disposition of gift tax against the Plaintiffs, as shown in the separate taxation list, shall be revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. He acquired and managed 2,035,570 shares (hereinafter "the shares of this case") in the name of nine former and incumbent executives and employees as shown in the attached tax assessment list, as shown in the attached tax assessment list, from among the shares of Manbbb○○, which was under his control and management on February 21, 2007, 207.

나 . 망 박소가 2007 . 2 . 21 . 사망하면서 이 사건 주식은 망 박 의 상속인들 ( 체 망 김■■ , 아들 원고 박○○ , 딸 원고 박△△ ) 에게 상속되었고 ( 이하 ' 최초 상속 ' 이라 한다 ) , 이후 망 김■■ 이 이 사건 주식을 관리하였으며 , 2011 . 11 . 4 . 망 김■■ 이 사망 하면서 이 사건 주식 중 망 김■■ 이 상속받았던 부분은 그 자녀들인 원고들에게 다시 상속되었다 ( 이하 ' 재상속 ' 이라 한다 ) .

(c) on February 21, 2007 due to the death of the net stuff; and

With respect to the title trust of the instant shares with nine title trustees, the Defendants: (a) pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the “Gifts Tax Act”) on the date of the title transfer on the share registry of this case, deemed that the deceased Park, a real owner, donated the relevant shares to the title trustee; and (b) imposed and notified gift tax on the title trustee. At the same time, the Defendants designated the deceased Park○ or the Plaintiffs as a joint and several taxpayers for the said nine title trustees, and notified the title trustee of gift tax of KRW 4,228, 798,861 in total.

D. On February 27, 2013, Plaintiff Park○-○ paid all the gift tax imposed and notified as above, and on the other hand, the instant shares were excluded from inherited property due to title trust, and thus, the Plaintiff paid the inheritance tax, which was omitted by including the value of the instant shares in the inherited property value, to the inherited property value again.

마 . 이후 피고들은 최초 상속시인 2007 . 2 . 21 . 을 상속인들인 원고들의 이 사건 주식 취득일로 보고 , 그 취득일의 다음해 말일 ( 2008 . 12 . 31 . ) 까지 상속인들의 명의로 명의개 서를 하지 않았다는 이유로 위 9인의 명의수탁자들에게 2009 . 1 . 1 . 또다시 증여세부과 처분을 하였으며 , 피고들은 그 증여세에 대해서도 2013 . 2 . 13 . 망 김■■ 또는 그 상 속인들인 원고들을 연대납세의무자로 지정하면서 합계 3 , 447 , 606 , 057원의 증여세를 납 부통지 ( 이하 ' 이 사건 처분 ' 이라 한다 ) 하였다 .

F. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on May 3, 2013. However, on July 24, 2013, the Tax Tribunal rejected the decision of dismissal, and accordingly, filed the instant lawsuit on October 22, 2013.

[Ground for Recognition: Facts without dispute, entry of Gap evidence 1 and 2, purport of the whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

The gift tax has already been imposed by re-informing the fact that the title trust was made from the deceased gambling to the title trustee of the said nine persons, and on the ground that the heir failed to implement the change of title, it is illegal to impose gift tax again on the ground that it does not meet the requirements of Article 45-2 of the Inheritance Tax and Gift Tax Act.

(b) Related statutes;

As shown in the attached Form.

C. Determination

피고들은 망 박소가 위 9인의 명의수탁자들에게 이 사건 주식을 명의신탁한 것 뿐만 아니라 , 최초 상속으로 원고들과 망 김■■에게 이 사건 주식의 소유권이 포괄승 계됨으로 인하여 9인의 명의수탁자들에게 또다시 증여가 이루어진 것으로 의제하여 이 사건 처분을 하였다 . 그러나 이 사건 처분은 다음과 같은 이유에서 위법한 것으로 판 단된다 .

(1) Article 45-2 (1) of the Inheritance Tax and Gift Tax Act states that "where the actual owner and title holder are different in cases of property which requires the transfer or exercise of rights, the value of such property shall be deemed donated from the actual owner by the title holder on the date (where such property is a property requiring the transfer of rights, referring to the date following the end of the year following the year in which the date of acquisition of rights is the date of acquisition of rights), the title holder is not entitled to receive a donation from the actual owner." The purport of the above provision is that "." The defendant asserts that, even though the comprehensive succession of shares held in a title trust was made on the basis of the part within the general title of the above provision, if a title holder fails to do so by the day following the end of the year following the year in which the date of acquisition of rights falls, it shall be deemed as donation and gift tax may be levied on the actual owner. However, examining the language of the above provision, the part within the comprehensive title trustee is determined as donation in cases where a title trustee has a title trust through the transfer.

② The legislative intent of Article 45-2(1) of the Inheritance and Gift Tax Act is as follows: (a) first, in the case of property requiring transfer or exercise of rights, the transfer of rights, based on registration, etc., by deeming the transfer of rights to be subject to taxation; (b) thereby preventing tax avoidance by fictitious act; and (c) a person, who is the nominal owner by an agreement with the owner, acquires a legal status that can dispose of the property as an external complete owner even though it is a simple title trust relationship; (d) thereby, recognizing the need or value of the tax in relation to the acquisition of such legal status (see Supreme Court Decision 88Nu3925, May 23, 1989). However, in the case of property subject to gift tax by deeming the title trust of the shares of this case, based on the first inheritance as a donation, there is no possibility of tax evasion by the act of the first inheritance, or there is no need to additionally recognize the value of the title holder’s externally acquired ownership as a nominal owner or the value of the gift tax.

3. Conclusion

Therefore, the plaintiff's claim is justified, and it is decided as per the disposition.

Judges Kim Jong-tae

Judges Jeon Jin-jin

Judges Ansan-jin

List of Taxation (Omission)

Related Acts and subordinate statutes

▣ 구 상속세 및 증여세법 ( 2010 . 1 . 1 . 법률 제9916호로 개정되기 전의 것 )

Article 4 (Gift Tax Liability)

(5) In cases falling under the provisions of paragraph (2) and Article 45-2, the donor shall be jointly and severally liable to pay with the donee even though a donee is not falling under any of the subparagraphs of paragraph (4).

Article 45-2 (Presumption of Donation of Property under Title Trust)

(1) Where the actual owner and the nominal owner are different in property (excluding land and buildings; hereafter the same shall apply in this Article), the value of which is required to be registered, etc. for the transfer or exercise of rights, notwithstanding Article 14 of the Framework Act on National Taxes, the nominal owner shall be deemed to have donated the value of such property from the actual owner on the date when he/she registers, etc. as the nominal owner (where such property is subject to a change of ownership, referring to the date following the last day of every year following the year in which the date of acquisition of ownership falls) notwithstanding Article 14

1. Where a property is registered, etc. in the name of another person without any purpose of tax avoidance, or a name of the actual owner who has acquired the ownership is not registered;

2. Where converting the stocks, etc. which are entered in the register of stockholders or the register of members under the name of another person or whose transfer is made, from among the stocks or equity shares (hereafter referred to as "stocks, etc." in this Article) on or before January 1, 1997, into the name of the actual owner during the period not later than December 31, 1998 (hereafter referred to as the "period of grace" in this Article): Provided, That the same shall not apply to cases where converting the name of the person having a special relationship with the stockholders or investors of the corporation which issued the relevant stocks, etc. (hereafter referred to as "shareholders, etc." in this Article) or of the person who is a minor as of January 1, 1997;

(2) Where property is registered, etc. under the name of another person, and where a transfer is not made under the name of the actual owner, and where the name of stocks, etc. is not converted under the name of the actual owner during the grace period, it shall be presumed that there exists a purpose of tax avoidance: Provided, That this shall not apply to cases where the transferor files a report on the tax base of transfer income under Articles 105 and 110 of the Income Tax Act or a report on the change of ownership under Article 10 of the Securities Transaction Tax Act

(3) In the application of the provisions of paragraph (1), where the register of stockholders or the register of members has not been prepared, the decision of transfer shall be made in accordance with the documents concerning the stockholders, etc. submitted to the head of the competent tax office having jurisdiction over the place of tax payment pursuant to the provisions of Articles 109 (1) and 119 of

(4) The provisions of paragraph (1) 2 shall apply only to a case where a person who has converted stocks into the name of a real owner during a grace period submits the contents of conversion to the corporation which issued the stocks or the head office or principal office of the invested corporation, as prescribed by the Presidential Decree