Tax Tribunal 2015Seoul Northern3445 ( December 30, 2015)

Whether the instant shares constitute title trust shares

It is reasonable to view that there is no evidence of the assertion that there is credibility of the statement, such as the assertion that there is an actual owner, and that there is no high-amount cash has been used as a church donation in the process of prosecutor's investigation, and that there is no other shareholders' dividend is the same withdrawal method, and thus, it is in accordance with

Donation of title trust property under Article 41-2 of the Inheritance Tax and Gift Tax Act

2016Guhap58673 Revocation of Disposition of Imposition of Gift Tax

○ Kim

head of Sung Dong Tax Office

October 13, 2016

November 10, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of each gift tax (including additional tax) on May 1, 2015 by the defendant against the plaintiff on May 1, 2015 shall be revoked.

1. Details of the disposition;

A. The food sales business established on September 21, 200 for ○○○ (hereinafter “○○”) Company (hereinafter “Nonindicted Company”)

It is a company that conducts business.

B. The Plaintiff was a representative director of the company from the time of incorporation of the non-party company to March 18, 2014. As to the 5,200 shares issued by the non-party company on September 21, 200. On August 21, 2002, the Plaintiff completed the transfer of each of the above 5,200 shares issued by the non-party company transferred from the non-party AA to the non-party company under his/her own name (hereinafter referred to as "the above shares in dispute").

C. The Defendant applied Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter “former Inheritance Tax and Gift Tax Act”) to the Plaintiff on May 1, 2015, on the ground that the Plaintiff received a title trust on the part of the non-party company’s actual company’s shares (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and brought an appeal with the Tax Tribunal on June 19, 2015.

B. On December 30, 2015, a decision of dismissal was issued.

[Ground of Recognition] Unsatisfy, Gap evidence 1, 3, Gap evidence 2-1 to 3, Gap evidence 4-1,

2. Evidence No. 1 of Eul, entry No. 11-1 of Eul, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff acquired the key shares by paying a normal share price to AA and paying a share price to the non-party company. Thus, the Defendant’s disposition that deemed the Plaintiff is merely a title trustee of the key shares is unlawful.

B. Relevant statutes

Attached Form 2 is as listed in the relevant statutes.

C. Determination

1) Facts of recognition

A) The shareholder change in the part at issue regarding whether a title trust is held by △△ among the shares issued by the non-party company is as follows.

Stockholders

At the time of establishment

After August 21, 2002

5,200 Shares (10%)

10,400 Shares (20%)

AA

5,200 Shares (10%)

0

BB

5,200 Shares (10%)

5,200 Shares (10%)

DD

5,200 Shares (10%)

5,200 Shares (10%)

Total

20,800 Shares (40%)

20,800 Shares (40%)

B) From April 11, 2005 to July 13, 2010, Nonparty Company paid the Plaintiff totaling KRW 355,320,000 to the Plaintiff. The said amount was fully withdrawn in cash as indicated below.

was made.

(unit:,000 won)

Dividends

Date of Payment

Nonparty Company

Dividends

Payment Account

Dividends

Receiving Accounts

Dividends

Payments

Date of Cash Withdrawal

Cash Withdrawal

Account

Amount of cash withdrawal

April 11, 200

Account 1

Account 2

67,680

o April 13, 05

Account 2

67,680

- May 3, 060

Account 3

Account 2

135,360

06.5.4

Account 2

40,000

May 8, 060

37,000

06.5.9

35,360

May 11, 060

23,000

April 30, 198

Account 3

Account 2

50,760

July 12, 198

Account 2

40,000

August 7, 07

18,800

June 25, 200

Account 3

Account 2

50,760

July 1, 080

Account 2

25,000

July 23, 200

25,760

10,7.13

Account 1

Account 4

50,760

November 31, 190

Account 5

10,000

November 28, 198

15,000

December 22, 198

15,000

November 23, 190

15,000

Total

355,320

363,720

C) The dividends deposited into the account in the name of BB and CCC was withdrawn in most cases in cash.

D) On December 4, 2014, the Plaintiff appeared at the ○○ District Prosecutors’ Office and stated to the following purport.

- The 10,400 shares in the name of the Plaintiff are all the actual owners of the shares.

- The Plaintiff did not have any factual exercise of its power over 10,400 shares, and all of the dividends received from the non-party company were withdrawn, and returned them to YU Doz.

- AA was released from the office of the representative director of the non-party company, and the Plaintiff was additionally assigned 5,200 shares in the name of the non-party company in accordance with the instruction of the terms and conditions. At that time, the Plaintiff did not actually pay AA for the acquisition price of shares.

- The Plaintiff thought that the 10,400 shares of this issue were owned by Doz., at any time, the Plaintiff had an intention to respond to the transfer of the shares to a third party. In fact, around January 2014, the Plaintiff intended to donate 10,400 shares of this issue to Dozzz.

- At the time, the Plaintiff was released from the office of the representative director of the non-party company, and was given an instruction from the non-party EE and FF to donate 10,400 shares to DD.

- He was unable to return 10,400 shares of 10,400 shares in the name of the principal because he was able to hold his own property in his name, and if the shares of the Plaintiff’s idea are transferred in the name of DoD where Dog Agreement is settled, he would have given the above orders, and it would have been likely that the shares of the Plaintiff’s idea would have been transferred in the future.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4-1, 2, Eul evidence No. 12, 13, 15, and 17, the purport of the whole pleadings

2) Determination

According to the circumstances and facts of the above disposition, the plaintiff already stated that the actual owner of the 10,400 shares issued in the course of the prosecutor's investigation was the △△△△△, and that the statement is very detailed and thus it is deemed reliable; the plaintiff stated that all dividends paid from the non-party company were returned to △△△△; the plaintiff actually withdrawn dividends deposited in the plaintiff's account for the purpose of Hunting the above money; the plaintiff asserted that all of the dividends paid in cash were used for the purpose of Hunting the above money; however, the plaintiff did not submit materials supporting this; there is no explanation to understand the reasons for withdrawing the amount in cash; and the other shareholders' dividends paid to the trustee are also withdrawn in cash in the same manner as the plaintiff. Considering these circumstances, it conforms to the empirical rule to deem that the plaintiff is in the status of the trustee, not the actual owner of 10,400 shares.

Therefore, the instant disposition made by applying Article 41-2(1) of the former Inheritance Tax and Gift Tax Act to the same purport is lawful, and the Plaintiff’s assertion disputing this is groundless.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.

[Attachment 1]

List of Impositions

(unit: Won)

Year

Principal Gift Tax

Additional Tax on negligent tax returns

Additional Dues

Total Tax Amount

200

2,600,000

520,000

520,000

3,640,000

202

454,875,040

90,975,008

90,975,008

636,825,053