2015-China-4608 (2016.07)

The specification of donor and actual owner constitutes a taxation requirement which serves as the premise of the provision on deemed donation of title trust, and the burden of proof is borne by the tax authority.

The Plaintiff’s acquisition of the Plaintiff’s △△ Shipping shares is difficult to recognize the Deceased as the title truster of the instant shares, unless it is proved at all that the reason for the Plaintiff’s capital was included in the deceased’s acquisition of the shares. Therefore, the instant disposition is unlawful since the actual

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

2016Guhap61373 Revocation of Disposition of Imposition of Gift Tax

The AA

XX Head of tax office

December 20, 2016

February 7, 2017

1. The Defendant’s imposition of KRW 88,168,240 as gift tax on December 31, 2007 against the Plaintiff on December 15, 2014 is revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The △△△△△ Shipping Co., Ltd. (hereinafter “△△△△△△”) is a company established on February 24, 199 and engaged in maritime passenger and freight transport business.

B. At the time of the report of the corporate tax in 2007, the head of the competent tax office submitted a detailed statement of changes in stocks, etc. to the effect that “the Plaintiff previously owned 5,000 shares of △△△△△△△△△△△△ shares (hereinafter “instant shares”) from August 2, 2007, and that “the Plaintiff owns 20,000 shares of △△△△△△△△△△ shares as of the end of 2007” as of the end of 2007. At the time of the report of the corporate tax in 2008, the Plaintiff submitted a detailed statement of changes in stocks, etc. to the effect that “the Plaintiff owns 20,00 shares of △△△△△△△△ shares as of the end of 2008” at the time of the report of the corporate tax in 2012.

C. The director of the Seoul Regional Tax Office, from September 15, 2014 to October 5, 2010 of the same year, conducted a tax investigation into △△△ Shipping, etc., on the ground that the net ○○○○ (the verification of death on July 31, 2014; hereinafter referred to as “net”) was the actual owner of △△ Shipping and thus, the Plaintiff was in title trust with the instant shares, and notified the Defendant of the assessment data on gift tax on the Plaintiff pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as “former Inheritance Tax and Gift Tax Act”). The Defendant decided and notified the Plaintiff of the assessment data on gift tax on December 15, 2014 (hereinafter referred to as “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 19, 2015 on March 13, 2015, but the Tax Tribunal dismissed the said appeal on January 7, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s acquisition of the instant shares does not exist, and thus, the instant disposition based on such premise is unlawful.

2) Even if the Plaintiff acquired the instant shares by transfer from Park○○○, it cannot be deemed that the Plaintiff received the instant shares from the Deceased, and thus, the instant disposition based on such premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the first argument

As acknowledged by the statement No. 5-1 of the evidence No. 5 in the circumstances of the disposition No. 1. 1. In addition to the facts that the Plaintiff, at the time of investigation of the Seoul Regional Tax Office on June 9, 2014, obtained additional 15,000 shares in relation to the suspected violation of the Punishment of Tax Evaders Act against the Deceased, at the time of the investigation of the Seoul Regional Tax Office on June 9, 2014, was in office as the president of the Korea ○○○○○○ (the Plaintiff) who was the representative director at the time of the △△△△ Shipping, borrowed the name in order to cooperate with the Plaintiff in the name of 15,00 shares at the request of the representative director at the time of the △△△○○○○ (the Korean ○○○ regular members at the time of the △△△△ Shipping). In addition to the facts that the Plaintiff stated that all 20,000 shares are “no shares owned”, this part of the Plaintiff’s assertion has merit.

2) Judgment on the second argument

The main text of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act provides that in case where the actual owner and the nominal owner are different with respect to property which requires a registration, etc. for the transfer or exercise of the right, the value of such property shall be deemed to have been donated to the actual owner on the date when the actual owner and the nominal owner are registered, etc., notwithstanding Article 14 of the Framework Act on National Taxes. According to the language and text of the above provision, if the actual owner and the nominal owner are different, the nominal owner shall be deemed to have donated the property from the actual owner, and therefore, identifying who is the actual owner and the donor constitutes a taxation requirement that serves as the premise for applying the above provision, and the burden of proof therefor shall be borne by the tax authority (see, e

In other words, the main provision of Article 45-2(1)1 of the former Inheritance Tax and Gift Tax Act provides that the main provision shall not apply to cases where a person registers property under another person’s name without any purpose of tax avoidance. The purpose of tax avoidance is to determine the actual owner who owns property under another person’s name as the main owner. Thus, if the actual owner is not specified, it is difficult to prove that the actual owner does not have any purpose of tax avoidance. ② Article 4(4) and (5) of the former Inheritance Tax and Gift Tax Act imposes a joint payment obligation on the donor in cases where it is difficult to secure tax claims against the donee, and where the actual owner is deemed to have donated property under a title trust under Article 45-2 of the former Inheritance Tax and Gift Tax Act. Thus, if the actual owner is not specified, it is difficult to impose a joint payment obligation on the actual owner. Moreover, Article 53 of the former Inheritance Tax and Gift Tax Act provides that a certain amount of amount shall be deducted from the donated property depending on whether the actual owner is the donor.

이 사건에 돌이켜 살피건대, 을 제5, 7, 8, 9, 12호증의 각 기재에 의하면, 원고는 2014. 6. 9. "이 사건 주식은 차명주식입니다"라고 진술한 사실, 안○○(△△△해운 설립시부터 2010. 3. 20.까지 △△△해운의 대표이사로 근무)는 2014. 1. 27. "△△△해운은 망인이 실질적으로 경영하는 회사입니다"라고 진술한 사실, 김□□(2010. 3. 25.부터 △△△해운의 대표이사로 근무)이 2014. 6. 26. "서류상 드러나는 것은 아무것도 없지만 망인이 △△△해운의 실질적인 오너라고 생각합니다. 개인주주들은 차명이라고 들었습니다. 제가 대표이사로 취임하기 전에 있었던 일입니다"라고 진술한 사실, 조□□(2000. 10. 1.부터 2014. 5. 31.까지 △△△해운의 직원으로 근무)은 2014. 6. 24. "△△△해운의 주식 중 천○○, 아이○○○○○스, 세○ 등 법인이 취득한 주식 외에는 전부 차명주식입니다"라고 진술한 사실, 김■■(2007. 10.경부터 2014. 3.경까지 주식회사 000아이홀딩스의 대표이사로 근무)는 2014. 12. 1. "△△△해운의 중요업무에 관한 최종 결정권자는 망인입니다. 김□□이 보유하는 있는 △△△해운 주식의 실제 주인은 망인으로 알고 있습니다"라고 진술한 사실 등은 인정되나, 비록 피고의 주장과 같이 망인이 △△△해운을 실질적으로 지배할 만한 상당한 영향력을 갖고 있었다고 하더라도 원고가 이 사건 주식을 취득할 당시 또는 박○○가 이 사건 주식을 취득할 당시 망인의 자금이 이 사건 주식의 취득자금으로 실질적으로 사용되었다는 사실이 증명되지 않는 이상, 위 인정사실만으로 이 사건 주식의 실제소유자를 망인으로 단정하기에는 부족하고, 달리 이를 인정할 만한 뚜렷한 증거가 없다.

Therefore, the instant disposition, which differs from this premise, should be revoked in an unlawful manner.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.

Relevant statutes

▣ 구 상속세 및 증여세법(2007. 12. 31. 법률 제8828호로 개정되기 전의 것)

Article 4 (Gift Tax Liability)

(1) A donee shall be liable to pay gift tax pursuant to this Act: Provided, That where the donee is a profit-making corporation, the gift tax payable by such profit-making corporation shall be exempted, but where the profit-making corporation, the title holder of the gift tax under Article 45-2, is exempted from paying the gift tax, the actual owner (

(2) Where a donee is a non-resident as of the date of donation, he/she shall be liable to pay gift tax only on donated property within Korea.

(3) In applying the provisions of paragraphs (1) and (2), when the donee is deemed incapable of paying the gift tax, which are the cases falling under the provisions of Articles 35 through 37, and 41-4, all or part of the gift tax equivalent thereto shall be exempted.

(4) Where a donee falls under any of the following subparagraphs, a donor shall be jointly and severally liable to pay the gift tax payable by the donee: Provided, That this shall not apply to cases falling under the provisions of Articles 35, 37 through 41, 41-3 through 41-5, 42 and 48 (limited to cases where a contributor is not responsible for the operation of the relevant public-service corporation and prescribed by the Presidential Decree):

1. Where it is difficult to secure a taxation right because the domicile or residence is unclear;

2. Where it is deemed difficult to secure a gift tax claim even after the disposition on default is made due to the lack of ability to pay the gift tax.

(5) In a case falling under paragraph (2) and Article 45-2, the donor shall be jointly and severally liable for payment with the donee even if the donee does not fall under any of subparagraphs of paragraph (4).

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

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

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

2. Where converting into the title of actual owner during the period not later than December 31, 1998 (hereafter in this Article, referred to as the “period of grace”) for the stocks, etc. which have been entered in the register of stockholders or the register of members or whose titles have been transferred to another person under the name of a third person pursuant to a trust or agreement before January 1, 1997 from among the stocks and equity shares (hereafter in this Article, referred to as the “stocks, etc.”): Provided, That the same shall not apply to the case where converting into the titles of the person having a special relationship with the stockholders or investors of the corporation which has issued the relevant stocks, etc. (hereafter in this Article

(2) Where any property is registered, etc. under another person's name, and a transfer of ownership 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, it shall be presumed that there exists an object of tax avoidance: Provided, That this shall not apply to cases where the transferor files a report on the change of ownership along with a report under Articles 105 and 110 of the Income Tax

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

(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 relevant stocks or the head office or principal office of the invested corporation, as prescribed by

(5) The provisions of paragraph (1) shall not apply in case of making a registration, etc. of the trust property under the Trust Business Act or the Act on Business of Operating Indirect Investment and Assets, and in case of a legal representative or administrator.

(6) The term "taxes under paragraphs (1) 1 and (2) means the national and local taxes under subparagraphs 1 and 7 of Article 2 of the Framework Act on National Taxes and the customs duties under the Customs Act.

(7) The scope of related persons under the proviso of paragraph (1) 2 shall be prescribed by Presidential Decree.

Article 53 (Gift Property Deductions)

(1) In case where a resident receives a donation from a person falling under any of the following subparagraphs, the amount according to the classification of the following subparagraphs shall be deducted from the taxable amount of gift taxes. In this case, when the sum of the amount to be deducted within 10 years before the relevant donation and the amount to be deducted from the relevant donation amount exceeds the amount stipulated in the following subparagraphs

1. Three hundred million won, where a donation is received from a spouse;

2. Where a donation is received from a lineal ascendant or a lineal descendant, 30 million won: Provided, That where a minor receives a donation from a lineal ascendant, the amount shall be 15 million won;

3. Five million won where a donation is received from a relative who is not a spouse, or lineal ascendant or descendant.

(2) The scope of relatives under paragraph (1) shall be prescribed by Presidential Decree.