If share capital is paid, all rights and obligations of shareholders shall accrue if such share capital is paid.

Since there are rights and obligations of shareholders from the date following the due date for payment of new shares, even if the company did not prepare and keep a register of shareholders under the Commercial Act, the new shares underwriter does not exercise rights and obligations as shareholders, regardless of whether the change of holders is made, thereby constituting a title trust.

The contents of the decision shall be the same as attached.

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s imposition of gift tax of KRW 3,957,164,280 on February 4, 2008 against Plaintiff High ○○, which was on February 4, 2004, and KRW 483,643,210 on the gift tax of KRW 3,957,164,280 on which the Plaintiff had been on July 4, 200

1. Circumstances of the disposition;

가. 전◇◇는 1987. 3. 16. 주식회사 ☆☆건설(이하 '☆☆건설'이라고 한다)을 설립하였다. ☆☆건설은 여러 차례의 상호 변경을 거쳐 1992. 9. 15. ★★종합건설 주식회사 로 그 상호를 변경하였고, 2000. 6. 3. 그 일부가 분할되어 에이치제이건설 주식회사가 설립되었다. 에이치제이건설 주식회사는 2001. 4. 10. 상호를 주식회사 ★★종합건설 (위 ★★종합건설 주식회사와는 별개의 회사이다J로 변경하였고 주식회사 ★★종합건설은 2005. 4. 13. 상호를 주식회사 ★★으로 변경하였다(이하 '이 사건 회사'라고 한다).

B. On December 9, 2004, the instant company issued new shares with 473,714 shares in its own name, 49,364 shares, and 9,512 shares among them, respectively, and the company paid the acquisition price of the new shares with its own name, 473,714 shares, 49,364 shares, and 9,512 shares, respectively, in the name of the Plaintiff Go Jae-sung, 24,682 shares, respectively, in the name of Kim Il-tae (hereinafter referred to as the “instant shares”), and the company paid the acquisition price in advance.

C. The Defendant notified the Jung-gu regional tax office of the taxation data that △△△△ was to take over the shares of this case by lending the plaintiffs' names, and applied the main text of Article 45-2(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the "Inheritance Tax and Gift Tax Act") with respect to the deemed donation of title trust property, the Defendant imposed KRW 3,957,164,280 on the Plaintiff High ○○○ in February 4, 2008, and KRW 483,643,210, respectively, on the part of the Plaintiff Jeon Il-si, one of whom belongs in 204 (hereinafter referred to as the "disposition of this case").

D. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal, but was dismissed on September 25, 2009.

[Reasons for Recognition] Uncontentious Facts, Evidence Nos. 1, 2-1, 2-2, Evidence Nos. 3-1 through 4, Evidence Nos. 4-10, Evidence Nos. 1-1 through 6, the whole purport of pleadings

2. Whether the dispositions of the instant case are legal.

(a)Recommendations of the plaintiffs;

The disposition of this case is illegal for the following reasons:

(1) As long as the transfer of shares in this case was not made in the name of the Plaintiffs in the register of shareholders, even if the Plaintiffs stated the change of shares as shareholders, this is merely a reference material for securing taxation data, and thus, there is no title trust of shares.

In addition, Article 45-2(3) of the Inheritance Tax and Gift Tax Act, which requires the determination of the transfer of a title based on the statement on the change of stocks, violates the principle of prohibition of excessive management under the Constitution, and thus infringes on property rights or violates the principle of equality. Therefore, the shares of this case cannot be deemed as

(2) Even if the former △△△, even if the shares of this case were held in title trust in the future of the plaintiffs, it was made in the extension line of the name borrowed at the time of the construction of the △△△△△△△, and thus, it cannot be deemed as a new title borrowed. Therefore, the purpose of title trust of the shares of this case is to collect the number of promoters required for the establishment of the corporation, to strengthen the plaintiffs' location in the company of this case, or to strengthen the plaintiffs' location in the company of this case, and there are no taxes practically avoided by signing for the name borrowed from the company of this case

(b) Related statutes;

It is the same as the entry of the attached statutes.

C. Determination

(1) Judgment on the first proposal

살피건대, 갑 제4호증의 6 내지 11의 각 기재에 변론 전체의 취지를 종합해 보면 이 사건 회사는 ★★종합건설 주식회사로부터 분할ㆍ설립된 이래로 주주명부를 작성ㆍ비치한 사실이 없고, 다만 세무관서 등에 제출할 목적으로 주식 및 출자지분 변동상황명세서를 매년 작성해 온 사실이 인정된다.

However, unlike a transfer of ownership is required pursuant to Article 337(1) of the Commercial Act, with respect to the acquisition of new shares identical to the shares in this case, the rights and obligations of shareholders from the date following the due date of payment upon which the underwriter of the new shares pays the subscription price on or before the due date pursuant to Article 423(1) of the Commercial Act. Therefore, even if the company in this case did not prepare and keep the register of shareholders under the Commercial Act, as seen earlier, insofar as the former △△ has paid all the amount of the new shares acquired under the name of the Plaintiffs as the actual owner of the shares in this case, it does not interfere with the exercise of rights as a shareholder regardless of the transfer of ownership. This constitutes “where the actual owner and the nominal owner are different in property requiring a change of ownership or an exercise of the rights” (see Supreme Court Decision 9Du3843, Sept. 3, 199). Therefore, the Plaintiff’s assertion that denies the title trust theory on the shares in this case is without merit.

Furthermore, the fact that the shares of this case were held in title trust in the future of the plaintiffs can be sufficiently recognized only by the fact that the shares of this case which were acquired under the plaintiffs' names were fully paid. Thus, whether the company of this case is held in title trust or not according to the statement on changes in the shares such as the shares submitted to the head of the competent tax office in connection with the acquisition of the shares of this case. Thus, in recognizing the shares of this case as the title trust between △△△ and the plaintiffs, the provisions of Article 45-2 (3) of the Inheritance Tax and Gift Tax Act cannot be a direct basis provision, and therefore,

(2) Judgment on the second ground

(A) Article 45-2(1) of the Inheritance Tax and Gift Tax Act provides for an exception to the substance over form principle as it is to realize tax justice by effectively preventing the act of tax avoidance using the title trust system. Therefore, if it is recognized that the title trust was made for any reason other than the purpose of tax avoidance, and it is merely a minor reduction of tax incidental to the said title trust, it cannot be deemed that there was a "purpose of tax avoidance" under Article 45-2(1)1 of the Inheritance Tax and Gift Tax Act, and in this case, the burden of proving that there was no purpose of tax avoidance is against the person who asserts it (see Supreme Court Decision 2004Du7733, May 12, 2006).

The nominal owner who bears the burden of proof has a clear objective of tax avoidance to the extent that it is recognized that there was no tax avoidance purpose in the title trust, and should prove that there was no tax avoidance at the time of the title trust or in the future, to the extent that it would not have any doubt if there was an ordinary tax avoidance due to objective and correct evidence. On the other hand, whether there was an objective of tax avoidance or not should be determined at the time of the title trust of the relevant shares (see, e.g., Supreme Court Decisions 2003Du4300, Jan. 27, 2005; 2004Du11220, Sept. 22, 2006).

(B) Facts of recognition

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the pleadings as a whole in the descriptions of Gap evidence 4-6 through 11, Gap evidence 5-1 through 6, Gap evidence 6-11 through 13, Gap evidence 7-1, 2, Gap evidence 7-2, Gap evidence 8, Eul evidence 9-1 through 4, Eul evidence 2 and 8-1, Eul evidence 2 and 2.

① In order to meet the number of promoters required under the Commercial Act at the time of establishing the construction of △△△△ in March 16, 1987, the former △△△ established the construction of △△△△ in order to borrow the names of the plaintiffs, and to take over 2,000 shares issued in the name of △○○, and 3,00 shares issued in the name of △△△○, and paid the acquisition price

② On December 9, 2004, the instant company issued 820,000 shares by offering capital increase with the capital increase issued on December 9, 2004, and the details of stock change in the business year of 2004 (i.e., January 1, 2004 - December 31, 2004) are as follows. Meanwhile, according to the standard balance sheet as of December 31, 2004, the total amount of tangible assets at the time reaches 951,58,480 won.

③ On March 8, 2004, the instant company, an unlisted corporation, paid dividends of KRW 5 billion (25,000 per share) in the dividend amount of KRW 5 billion (25,000 per share) in the name of the Plaintiffs and Kim Mandong (6.02%: 1.6% in the name of the Plaintiffs, 1.06% in the name of the Plaintiff, 301,000,000 in the name of the Plaintiff Go ○○○○○, and 150,50,000 in the name of the Plaintiff, 58,000,000 in the name of the former Bronan, and 150,000,000 in the name of Kim Mandong, and △△○ reported the comprehensive income tax on the dividend amount of KRW 204,000 per share. As a result, the tax base of the Plaintiffs’ respective income tax rate of KRW 36% in the section applied to each of the above income tax rate of 36% in his own.

④ From the end of December 2005, the Central Regional Tax Office conducted an investigation into changes in stocks with respect to the instant company from the end of the Plaintiffs and the actual owners of stocks in the name of Kim Wil. On April 1, 2006, the Defendant was notified by the Central Tax Office of the fact that he was △△△△△△, which included the total of KRW 509,50,000 ( = 301,000,000 + + KRW 58,000,000 + KRW 150,500,000 + KRW 150,000) in the dividend income amount of the previous △△△△△△, and then re-calculated the total income tax attributed to 204 (the tax base of △△△△△△, regardless of whether or not the dividend was included in the above dividends, was applied to KRW 36% of the global income tax amount, which was applied to KRW 49,079,731 (including additional tax,469,621,2979).76.7

⑤ At the end of 2005, 2005, when the facts of title trust of the shares of this case were revealed to the Plaintiffs, the shares in the name of the Plaintiffs and Kim Ban were returned to their own name. Meanwhile, since the split-off of the shares, the company of this case occurred the net income of KRW 338,100,638 in the year 200, and the earned surplus before the disposal of the business year 2005 was transferred to KRW 93,652,927,019 in the year 2005. On March 16, 2005, the interim dividend of KRW 11.12,20,000 as the interim dividend of the business year 205, and distributed KRW 66.3 billion in the settlement of accounts

(C) Determination

In the event that △△△ established the construction of △△△△, when acquiring the new shares of the company of this case by lending the names of the plaintiffs and △△△△, and then taking over the shares from the construction of △△△△, the company of this case, which was established after borrowing the names of the same people, was planned to do the title trust of the shares at the time of the construction of △△△△△△, so long as the name of the plaintiffs and △△△△△ was not borrowed from the names of △△△△, it cannot be deemed that the title trust of the shares of this case, which was made after 17 years or after the expiration of 17 years, and rather, it is reasonable to view that the name of the plaintiffs and △△△△△ was merely borrowed once more. Therefore, whether there was a purpose of tax avoidance

According to the above facts, △△△ was deemed to have issued and acquired shares in the name of the plaintiffs and Kim Man for the purpose of meeting the requirements for the number of promoters required for the establishment of a corporation under the Commercial Act at the time of the establishment of △△△△△. Furthermore, according to Article 78(2) of the Enforcement Decree of the Local Tax Act, △△△△△△ is deemed to have a new acquisition as to the increased portion at the time of the oligopolistic shareholder’s increase in the number of oligopolistic shareholders of the non-listed corporation. In addition, prior to the time of title trust of the shares of this case, △△△△△ is already an oligopolistic shareholder of the company of this case, and he directly takes over the shares of this case which were acquired in the name of the plaintiffs and Kim Man (=49,364 + 9,512 + 24,000 + 100 + 1,000) ± KRW 1,580,000,000 per capita account of the transfer income tax amount per capita and 2581.

However, Article 288 of the Commercial Act at the time of the incorporation of the company of this case (amended by Act No. 5053, Dec. 29, 195; Act No. 648, Jul. 24, 2001) merely requires three or more promoters to establish the company, and the Commercial Act at the time of title trust of this case does not impose any limit on the number of promoters, and even if the former company did not have any specific purpose to dispose of the shares under the name of 600,000 won before and after the incorporation of the company of this case, it is difficult to conclude that the former company had a separate purpose to convert the shares under the name of 50,000 won including the shares of this case into the name of 60,000,000 won before and after the incorporation of the company of this case, the former company did not have any specific purpose to increase the number of shares under the name of 5,000,000 won before and after the establishment of the company of this case.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.