The legitimacy of the assertion that the title trust was made in order to meet the number of promoters in the process of establishment

In order to meet the number of promoters in accordance with the Commercial Act, which was in force at the time of incorporation of the company, the company held the trust of shares to the plaintiffs. It is reasonable to deem that the company was merely holding the shares in this case in the name of the plaintiffs since its capital increase was made in accordance with the

Article 41-2 of the Inheritance Tax and Gift Tax Act as Donation of Title Trust Property

1. On January 18, 2005, the imposition of gift tax of KRW 69,832,00, and the gift tax of KRW 193,149,600, and the gift tax of KRW 78,383,200, and the gift tax of KRW 78,383,200, which was made by the head of the tax office on the Plaintiff ○○○○ with respect to the Plaintiff ○○○○○ on January 19, 2005 against the Plaintiff ○○○○, shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. Plaintiff ○○○ is the wife of Kim○, a representative director of ○○○○○ (former trade name: ○○○ Electronic Co., Ltd.; hereinafter “Nonindicted Company”). Plaintiff ○○ is the former head of ○○, and Plaintiff ○○ is the former head of ○○, and Plaintiff △△△△ and the last head of △○○○ is the former head of ○○. Plaintiff ○○○○.

B. The non-party company was established on March 28, 198, and 152,00 shares issued at the time of establishment as indicated below were 7,00 shares of 10,000 won in total, 10,000 shares, 1,000 shares in the name of Kim○○, 400 shares in the name of Plaintiff Jeon○○, 200 shares in the name of Plaintiff Jeon○○, and 200 shares in the name of Plaintiff Choi△△, 13, 193, and 2,00 shares were 2,00 shares with shares issued on February 2, 200, and 152,00 shares were 152,00 shares with shares issued on May 13, 1993, and 2, 200 shares were 10,000 shares in the name of Kim○○, 8,000 shares in the name of Plaintiff Jeon○○, 4,000 shares in the name of Nonparty 2.

shares. . . . ..)

Classification

Relation

'88.3.28

(10 million won)

‘00.1.31

(Transfer)

‘00.20.2

(150 million won)

Total

(Share Holding Ratio)

○ Kim

Principal

7,000

7,000

7,000

14,000

3,000

114,000

152,000

○○

wife

500

500

500

1,000

9,000

12,000

○○

Yong-Nam

1,000

1,000

1,000

2,000

16,000

20,000

○ ○

Ministry of Maritime Affairs and Fisheries;

400

400

400

800

6,000

8,000

Maximum △△△

C.C.

200

200

200

400

3,000

4,000

Doz. Doz.

C.C.

200

200

200

400

3,000

4,000

tin ○

-

500

500

500

1,000

∆2,000

Park ○

-

200

200

200

400

∆1,000

Total

10,000

10,000

10,000

20,000

150,000

200,000

C. After the request of the Board of Audit and Inspection was made, on January 18, 2005, the Defendants deemed that Kim ○○ has held the shares of this case in title trust with the Plaintiffs, and pursuant to Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), the Plaintiffs deemed that they received the shares of this case from Kim ○○, and assessed the value of the shares of this case to KRW 109,980 per share on January 18, 2005, the head of the Defendant ○○○○○ issued a disposition of gift tax with respect to the Plaintiff ○○, before the Plaintiff ○○, KRW 699,832,00 won per share, and with respect to the Plaintiff 193,149,600 won, KRW 7838,200, Defendant 200, Defendant 13838, and △△△△△△.

[Ground of recognition] Facts without dispute, Gap 1's evidence 1. 2. Gap 2, Gap 15's evidence 1 to 4. Gap 16, Gap 19's evidence 1 to 8, and the purport of the whole pleadings

2. Whether a disposition is lawful

A. The plaintiffs' assertion

Each disposition of this case is unlawful for the following reasons.

(1) The Ggim○ issued the instant shares and capital increase with the use of the Plaintiffs’ name stolen, not by title trust to the Plaintiffs.

(2) Even if at the time of the declaration of corporate tax by the foreign company, the Plaintiffs were stated in the statement of changes in shares or the audit report as shareholders, as the non-party company did not keep the register of shareholders, and thus, it cannot be deemed that the title trust was made with respect to the shares of this case.

(3) Even if the family company Kim ○, a title trust of the instant shares to the Plaintiffs, this is limited to the number of promoters required under the Commercial Act at the time of establishment of Kim ○, and it is not for the purpose of tax avoidance, and it is not for the purpose of tax avoidance. Therefore, it cannot be deemed as a donation pursuant to Article 41-2(1) proviso of the former Inheritance Tax Act.

(4)In addition, the plaintiffs' expression of title trust is due to the mistake of motive caused by Kim○○○, and the plaintiffs' cancellation of such declaration around November 7, 2006 shall not be deemed to have the effect of title trust.

(5) Article 41-2 of the former Inheritance Tax Act, which is a basis provision for each disposition of the instant case, is contrary to the principle of no taxation without law or the principle of fair burden in that it is deemed that the donation is not a real donation.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether Gegim○ used the plaintiffs' names by theft

The testimony of the plaintiffs and the witness ○○○ alone lack of evidence to deem that Kim○ used the plaintiffs’ name in relation to the shares in this case, and there is no other evidence to acknowledge otherwise. Rather, comprehensively taking account of the overall purport of the pleadings in each statement Nos. 4 and 5, the plaintiffs prepared a loan certificate stating that the plaintiffs borrowed the amount equivalent to the amount paid from Kim○○ in relation to the capital increase issued on February 2, 2000. After being investigated by the mid-gu regional tax office in relation to the instant case, on July 29, 2002, the plaintiff △△△△△△ on July 26, 2002 stated to the effect that the plaintiff ○○ was notified of the capital increase of the non-party company on July 25, 2002, the plaintiff △△△△△△ was informed of the fact that the non-party company was notified by Kim○○ on the 25th day of the same month. In light of these facts

Therefore, this part of the plaintiffs' assertion is without merit.

(2) Whether the title trust is not made due to the absence of the register of shareholders

Comprehensively taking account of the overall purport of arguments in evidence Nos. 3, 4, and 12-1, 2, 13, and 14 of evidence Nos. 12-1, 12-2, 13, and 14, the facts that the plaintiffs registered as shareholders according to the details of changes in shares as seen earlier in the register of shareholders of the non-party company on July 21, 1988 and May 13, 1993, and facts that the minutes of the non-party company's temporary general meeting of shareholders held on January 20, 200 are attached to the list of shareholders that the plaintiffs registered as shareholders. In light of these facts, it is reasonable to deem that the shares of this case were registered under the names of the plaintiffs on the register of shareholders.

(3) Whether the whole ○ had no purpose of tax avoidance

① At the time of the incorporation of the non-party company, ○○○ owned 7,000 shares that amount to 10,000% of the total shares generated from the non-party company under its own name, and most of the remaining shares were in the name of the plaintiffs. At the time, the plaintiffs’ shareholding ratio was 10% in the case of the plaintiff ○○○ in the case of the plaintiff ○○○○, 4% in the case of the plaintiff ○○, 2% in the case of the plaintiff △△△△△, and △△△△, respectively. ② Since the non-party company’s shares increase twice thereafter, there was no change in the shareholding ratio up to the date of incorporation. ③ The fact that the non-party company did not withhold taxes or paid dividends once until the date of its incorporation, or that there was no dispute between the parties. In light of the above facts, it cannot be deemed that there was a legitimate purpose to deem otherwise to have been an oligopolistic shareholder under the provisions of the Local Tax Act or under the provisions of the Local Tax Act to continue to hold shares in title Trust.

On the other hand, the defendants asserted that the surplus carried forward by the non-party company has been continuously increased by KRW 4,580,121,825,940 in 200, KRW 4,020, KRW 243,350 in 201, KRW 4,344, KRW 714, KRW 414, KRW 4414, KRW 2003, KRW 4,512, KRW 350,716 in 2004, KRW 4,580,00 in 204, and KRW 4,898,48, KRW 480,995 in 205. However, the non-party company is a de facto one of the non-party Kim○○○○○, and thus it is possible to actually distribute it as earned surplus, unlike the external disclosure, it cannot be viewed as a different purpose of tax avoidance.

Therefore, even if the plaintiffs received the title trust of the shares of this case from Kim ○○, it is not deemed that the plaintiffs received the value of the shares pursuant to the proviso of Article 41-2 (1) 1 of the former Inheritance Tax Act due to the lack of the purpose of the tax conference. Therefore, each of the dispositions of this case imposing gift tax on the plaintiffs on different premise should be revoked because it is unlawful not to examine

3. Conclusion

Therefore, the plaintiffs' claims are reasonable, and it is decided as per Disposition by admitting them.

Related Acts and subordinate statutes

/Gu Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002)

Article 41-2 (Presumption of Donation of Title Trust Property)

(1) In case where the actual owner and the nominal owner are different with respect to the property (excluding the land and buildings; hereafter in this Article the same shall apply), which requires a registration, etc. for the transfer or exercise of the rights, the value of the relevant property shall be deemed to have been donated by the actual owner on the date when it is registered, etc. as the nominal owner, notwithstanding the provisions of Article 14 of the Framework Act

1. Where an asset has been registered, etc. in the name of another person without any tax evasion purpose;

2. Where the title is converted to the name of the actual owner during the period until December 31, 1998 (hereafter in this Article, referred to as the "suspension period") from among the stocks or equity shares (hereafter in this Article, referred to as the "stocks, etc."): Provided, That the same shall not apply to the case where the title is converted to the name of a person in a special relationship with the stockholders (including investors) of the corporation which issued the relevant stocks, etc., or that of a minor person as of January 1, 1997.

(1) Framework Act on National Taxes (amended by Act No. 7008 of Dec. 30, 2003)

Article 39 (Secondary Liability for Tax Payment of Contributors)

(1) Where the property of a corporation (excluding a corporation whose stocks are listed on the Korea Stock Exchange) is insufficient to cover the national taxes, additional dues, and disposition fee for arrears that are imposed on or to be paid by the corporation, any person who falls under any of the following subparagraphs as of the date on which the liability to pay national taxes is established shall be subject to secondary tax liability for such shortage: Provided, That in the case of an oligopolistic stockholder under subparagraph 2, the limit of the amount calculated by multiplying the amount obtained by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of the corporation, by the number of stocks owned (excluding non-voting stocks) or investment amount (in the case of

1. General partners;

2. An oligopolistic stockholder who is organized under any of the following items:

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51/100 of the total issued stocks or total investments of the relevant corporation;

(b) An honorary chairperson, chairperson, president, vice president, senior managing director, managing director, director, or any other person who actually controls the management of the corporation, notwithstanding the title thereof;

(c) The spouse (including the person in de facto marital relations) of the persons stipulated in items (a) and (b) and the lineal ascendants and descendants sharing their livelihood

(2) For the purpose of paragraph (1) 2, the term “excess shareholder” means a person who is a relative or has other special relations with a stockholder or partner with limited liability as prescribed by the Presidential Decree, and the total sum of stocks owned or investment is 51/100 or more of the total number of stocks issued or investment of the juristic person

/Local Tax Act (amended by Act No. 6312 of Dec. 29, 2000)

The secondary liability for tax payment of an investor) where the property of a corporation (excluding a corporation whose stocks are listed on the Korea Stock Exchange) is imposed on such corporation or where it is insufficient to cover the impositions of a local government to be paid by such corporation, the person falling under any of the following subparagraphs as of the tax base date of impositions of the local government or the date on which tax liability is established (in case of a tax item with no provisions concerning it, the commencement date of tax payment) shall be limited to the amount calculated by multiplying the shortage by the total number of outstanding stocks (excluding non-voting stocks) or amount of investment (in case of an oligopolistic stockholder referred to in subparagraph

1. General partners;

2. A person falling under any of the following items from among oligopolistic shareholders (referring to those whose total number of stocks held or investments made by a stockholder or a partner with limited liability and relatives or other persons having special relations with him as prescribed by the Presidential Decree is 51/100 or more of the total number of stocks issued or total investments of the juristic person concerned; hereinafter

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51 percent of the total issued stocks or total investments of the relevant corporation;

(b) An honorary chairperson, chairperson, president, vice president, senior managing director, managing director, director, or any other person who actually controls the management of the corporation, notwithstanding the title thereof;

(c) The spouse (including the person in de facto marital relations) of the persons stipulated in items (a) and (b) and the lineal ascendants and descendants sharing their livelihood

Article 105 (Persons Liable for Tax Payment, etc.)

(6) Where a person becomes an oligopolistic stockholder pursuant to the provisions of subparagraph 2 of Article 22 by acquiring the stocks or equity shares of a corporation (excluding the case where he becomes an oligopolistic stockholder by acquiring the stocks or equity shares issued at the time of incorporation of a corporation), the oligopolistic stockholder shall be deemed to have acquired the real estate, vehicles, mechanical equipment, standing trees, aircraft, ships, mining rights, fishing rights, golf membership rights, condominium membership rights, or general sports facilities membership rights of the corporation concerned: Provided, That this shall not apply to the portion where the acquisition tax

(A) Commercial Act (amended by Act No. 3724, Apr. 10, 1984)

Article 288 (Promoters) At least seven promoters shall be required for the incorporation of a stock company.