Early High Court Decision 2012J 3663 ( October 27, 2012)

It is difficult to accept the assertion that a name was entered in the register of shareholders by theft.

In light of the fact that a certificate of seal imprint, seal imprint, and a certified copy of resident registration are entrusted, it is difficult to accept the assertion that the name was stolen because it can be deemed that the company has consented to the title trust of a corporation explicitly or implicitly.

Article 45 of the Inheritance Tax and Gift Tax Act

2013Guhap10121 Revocation of Disposition of Imposition of Gift Tax

KimA

The director of the tax office

October 16, 2013

December 4, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition of imposition by the Defendant against the Plaintiff on January 2, 2012 by OOO (including additional OOOO) shall be revoked.

1. Details of the disposition;

A. BB Construction Co., Ltd (hereinafter “B Construction”) was a corporation established for the purpose of construction business, etc. on August 8, 2000, and the Plaintiff was registered in the shareholder registry as a shareholder of BB Construction from December 11, 2009 to September 10, 2010 (hereinafter “instant shares”).

B. The director of Busan Regional Tax Office, upon conducting a general consolidated investigation of corporate tax from 2006 to 2008 against BB ocean development corporations, BB construction corporations, andCC Heavy Industries corporations, deemed the actual owner of the instant shares as Kim KK and deemed it as a title trust to the Plaintiff, and notified the Defendant of taxation data by deeming it as a donation. Accordingly, on January 2, 2012, the Defendant issued a disposition of imposition of gift tax OOO (including additional tax OOO, less than 00 won, but less than hereinafter referred to as “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an objection on March 29, 2012, but was dismissed on June 28 of the same year, and again requested the Tax Tribunal to revoke the said disposition on August 1 of the same year. However, the Plaintiff was dismissed on November 13, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 1, 2, and 5 (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

KimK unilaterally entered the Plaintiff as a shareholder of BB Construction without knowledge of the fact that the Plaintiff received a certificate of personal seal impression, etc. as a registration of executive officers, and was subject to criminal punishment due to forgery and use of the certificate of stock transfer in the name of the Plaintiff, and thus, it cannot be deemed that there was an agreement on title trust between the Plaintiff and KimK.

B. Relevant statutes

m. Inheritance Tax and Gift Tax Act

Article 45-2 (Legal Fiction as Donation of Title Trust Property)

(1) Where the actual owner or the nominal owner of any property (excluding land and buildings; hereafter the same shall apply in this Article) required to be registered, etc. for the transfer or exercise of rights is different, the value of such property shall be deemed donated to the actual owner by the nominal owner on the date when it is registered, etc. to the nominal owner (where such property is subject to the change of ownership, referring to the date following the end of the year following the year in which the date of acquisition of ownership falls), notwithstanding Article 14 of the Framework Act on National Taxes:

1. Where any property is registered in another person's name without any purpose of tax evasion, or transfer is not made in the name of the actual owner who has acquired the ownership;

(2) Where property is registered, etc. under the name of another person, or a change of ownership is not made under the name of the actual owner, or where the title 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 evasion: Provided, That this shall not apply where the transferor files a report on the change of ownership along with a tax base return on capital gains under Articles 105 and 110

(c) Fact of recognition;

1) The Plaintiff was employed as an employee of BB Construction, and acquired the eligibility for health insurance with BB development corporation as its workplace from December 22, 2008 to September 4, 2010, and did not have been registered as an officer of BB Construction.

2) On September 28, 201, KimK received an investigation into whether a title trust was made from a public official of the Busan Regional Tax Office, and acquired on January 19, 2004 the entire shares of BB construction from the existing shareholders, thereby holding 100% of the shares. A part of the shares is the nominal owner of the Hong JJ, HanJD, KimE, KimF, KimF, and YG, under whose name the Plaintiff was the nominal owner. At the time of each title trust, the Plaintiff et al. was aware of this fact, as well as the Plaintiff et al. were well aware at the time of each title trust. As for the reasons that the title trust was made, as seen above, it was the bad credit holder at the time of the acquisition of BB construction, and thereafter, it did not have to acquire shares in the name of another, and thereafter, it stated that a shareholder of a financial institution was entrusted in the name of another person in consideration of the loan problem and the issue of overseas new delivery (Evidence evidence No. 3 and answer No. 3).

3) On October 4, 2011, the HongJ, HanD, KimE, Kim H, Kim H, and KimF, registered as the executive officers of BB construction, prepared and issued a confirmation document stating that the Busan Regional Tax Office official is not a real shareholder and that KimK merely lent its name at the request of KimK from the corporate employee’s point of view.

4) On October 10, 201, the Plaintiff, the Hong JJ, HanD, KimE, Kim H, Kim H, KimF et al., and seven others, unlike the above written confirmation at the Tong Young Police Station on October 10, 201, Kim Yong-K arbitrarily forged the documents concerning the raising and water supply using his seal without his consent.

A complaint was filed.

5) On November 15, 2011, 17, December 17, 201 of the same year, and January 11, 2012, 2012, Kim K had been investigated into the facts of forging the above private document and led to the confession of all of them, and was indicted for the facts of the crime, including the forgery of the above private document, and was sentenced to the conviction of the charge of forging the Changwon District Court in the Changwon District Court (2012Gohap27, 32, 35, 41 (combined), 72 (Consolidated), and the prosecution filed an appeal on the grounds of unfair sentencing, and the above facts of the crime was also acknowledged in the Busan High Court (original court) which is the appellate court.

6) Meanwhile, in a criminal trial on the fabrication, etc. of the above private documents by Kim K-K submitted a written agreement that the HongJ, HanDD, KimE, KimF, YF, YG, and the Y II were not wanting to be punished by Kim K-K. In the above criminal trial, Kim K-K submitted the normal data and the purport of proof that the tax imposed on the person who submitted the written agreement was revoked and that there was no damage to the party who submitted the written agreement.

7) Meanwhile, according to the return and statement of tax base of transfer income of the instant shares made as of October 21, 2010, the reporter is the Plaintiff, and the Plaintiff’s name, resident registration number, e-mail address, telephone number, and address are indicated.

[Reasons for Recognition] Unsatisfy, Gap evidence 4, Eul evidence 3, 4, and 6

D. Determination

1) Article 45-2(1) of the Inheritance Tax and Gift Tax Act applies to property, the transfer or exercise of rights of which requires registration, etc., in cases where the actual owner and the nominal owner make a registration, etc. in the future of the nominal owner by agreement or communication, and where a registration, etc. is made unilaterally by using the nominal owner’s name regardless of the intent of the nominal owner, this cannot apply. In this case, the tax authority must prove only the difference between the actual owner and the nominal owner, and the verification that the use of the nominal name was made by the unilateral act of the actual owner should be made by the nominal owner (see Supreme Court Decision 2007Du15780, Feb. 14, 2008). In addition, the title trust relationship is not necessarily established by an express agreement between the truster and the trustee, but may also be established by implied agreement (see Supreme Court Decision 200Da49091, Jan. 5, 2001).

In addition, the facts recognized in the judgment of a related criminal case are the only evidence in a civil trial unless there are special circumstances, but it may be rejected if it is deemed difficult to adopt a factual judgment of a criminal trial as it is in light of other evidence submitted in a civil trial (see, e.g., Supreme Court Decisions 2009Da12603, May 27, 2010; 2006Da27055, Sept. 14, 2006). This is also the same in an administrative trial, and if the tax authority has obtained a written confirmation from the taxpayer who is a certain taxable fact in the course of conducting a tax investigation, it cannot be readily denied the value of the written confirmation unless there are special circumstances, such as that the written confirmation was signed and sealed by force against the will of the originator, or that it is difficult to use it as a supporting material for specific facts due to lack of the content thereof (see, e.g., Supreme Court Decisions 2001Du25609, Dec. 6, 2002).

2) As seen earlier, it is difficult to believe that the Plaintiff’s transfer of shares in the name of the Plaintiff is consistent with the Plaintiff’s assertion on the name of the Plaintiff, and there is no other evidence to acknowledge the transfer of shares in light of the following circumstances. Rather, as seen earlier, considering the following circumstances, the Plaintiff’s assertion that it was difficult to unilaterally prepare a false statement of the Plaintiff’s personal information and the Plaintiff’s transfer of shares under the name of the Plaintiff’s name, and that it was difficult to view that the Plaintiff’s submission of a false statement of the Plaintiff’s transfer of shares was inconsistent with the Plaintiff’s statement by the HongJ, HanD, KimE, Kim HF, and KimF, which were listed as the officers of BB construction, and that it was difficult to view that the Plaintiff’s submission of a false statement of the Plaintiff’s personal information and the fact that it was difficult to find that there was a false statement of the Plaintiff’s transfer of shares under the name of the said Kim K including the Plaintiff, and that there was no possibility that the Plaintiff’s submission of a false statement of the Plaintiff’s transfer of shares to the above.

3. Conclusion

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