Since the second title trust is a tax avoidance purpose, the disposition imposing gift tax is legitimate.

The burden of proof that the shares of this case were re-titled in the second title trust and did not have tax avoidance purpose is the plaintiff, and since the net profit and loss amount for the last three years cannot be deemed to be abnormal, the stock evaluation is legitimate.

Article 16 of the former Value-Added Tax Act [Time of Supply for Services]

2017Guhap52535 Revocation of Disposition of Imposition of Gift Tax

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00. Head of tax office

September 26, 2017

November 30, 2017

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 of gift tax**,*,*,**(including additional tax) imposed on the Plaintiff on 2006.*. Gift tax**,**,***(including additional tax).

1. Details of the disposition;

가. 원고는 2005. **. **.부터 2014. **. **.까지 특수도료 등의 제조 및 판매를 주요 사업목적으로 하는 비상장법인인 @@@페인트 주식회사(이하 '소외 회사'라고 한다)의 부사장으로 근무하였다.

B. The Plaintiff entered into a contract to acquire shares of the non-party company *, *,00 shares of the non-party company *, *,00 shares of the non-party company *******,00 (the shares of this case). The Plaintiff entered into a contract to acquire shares of the non-party company ***,00,00 won (the shares of this case) as shareholders in the register of shareholders on the same day.

C. The plaintiff prepared a gift agreement with BB and ASEAN, who has been in the position of the president of the non-party company, as the model of the 2008.****AA, in each form of the non-party company, to donate the shares of this case by dividing them into *,*******, within the gift tax reporting period, the value of each of the shares received as above ***************,********** per share **************) and reported and paid *** in each form.

D. The defendant deemed that LIMF, the actual owner of the shares of this case, has trusted the shares of this case to the new* for the purpose of tax avoidance, and again held the title trust to the plaintiff. Pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (wholly amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act"), which is the provision on constructive donation of title trust, the defendant has made a decision on the value of the shares of this case ** by applying Article 56 (1) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (wholly amended by Presidential Decree No. 20621, Feb. 22, 2008; hereinafter the same shall apply) to the plaintiff ****,***,* (value per share**), evaluated as gift tax***** (including additional tax).

E. The Plaintiff, dissatisfied with this, filed an objection with the Seoul Regional Tax Office, but was dismissed*.*., and filed an appeal with the Tax Tribunal, but it was dismissed**.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 9, Eul evidence 1, Eul evidence 1, 9, 12 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

A. The Plaintiff, as an expert in the field of paint technology, entered the non-party company into the proposal of the president BB of the non-party company as long as the Plaintiff’s technology requires the Plaintiff’s technology, and the benefits were expected to increase the shares value of the non-party company in the future, to be granted 5% shares of the non-party company and vice president positions, and acquired the instant shares in the form of stock transfer. However, since around around October 2008, as the company’s situation is difficult from AAA to the point of view, the Plaintiff was a donation of the instant shares to BB and CCC to continue to work for the non-party company upon a coercive demand to return the instant shares. In other words, the Plaintiff did not receive the instant shares under title trust, but did not have any agreement or communication with any other party such as LIB or BB, and there is no specific dispute as to whether the title truster is LIM or BB in the lawsuit filed by another title trustee.

B. Even if the Plaintiff received the title trust of the instant shares, there is no purpose of tax avoidance.

C. In evaluating the instant shares, the Defendant weighted average of the net value of the profit and loss per share and the net asset value per share in 2003 to 2005, and the non-party company increased the profit only in 2004, and such profit was a temporary and contingent, and thus, the Defendant’s assessment of the instant shares by reflecting the net profit and loss value is unlawful.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether the instant shares were trusted in title to the Plaintiff

1) Facts of recognition

A) AAA, around 200, has delegated BB to the actual owner of the non-party company's shares 100% of the 100% of the 100 shares of the non-party company, including new*, the actual owner of the non-party company's shares **,**** the shares of the non-party company in July 2009 while working as the representative director of the non-party company according to the intention of BB, *** the above shares from BB, ******** the shares transfer price of the non-party company upon request of the non-party company to use the proceeds of the transfer to the non-party company for its business funds ***************************** because the non-party company's shares were embezzled as the reasons for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)* the above shares were not owned by the non-party company 21*, even if there were no reasons for the above decision made.

B) The Plaintiff was paid annual salary of KRW 70,000,00,000 while working as** from *. to 2001.* from *.* from 2001.* from 2004.* from 56 to 31.200* from 2009. Dec. 31, 200, while operating the private enterprise of the above company **** 3,004.*******, ***, 6, ****, **** *** KRW 205 million working for the non-party company from 205. The Plaintiff was paid annual salary of KRW 60,000,000.* from 205.* from 31 December 31, 2014.

C) At the time of the Plaintiff’s acquisition of the instant shares, the share transfer contract prepared by the Plaintiff is an ordinary form and does not state that the instant shares would be granted as a condition for the Plaintiff’s membership, and the date of the preparation of the said contract and the date of the Plaintiff’s acquisition of the instant shares after the lapse of two months from the date of entry into the Nonparty Company. The Plaintiff was paid by Nonparty Company’s employees pursuant to the instant share transfer contract ******** after the Plaintiff was paid in advance from Nonparty Company’s employees to the new**’s account, and then,

D) BB and CCC reported and paid gift tax on the ground that they received the instant shares from the Plaintiff on the ground that they were donated to the Plaintiff on *.***,**,**,******(1)(*,***). BB and CCC transferred the instant shares to Nonparty Company***,*,*,000 won per share****,*,00 won (***).

E) After the disposition of this case was taken, the Plaintiff filed a lawsuit against BB and CCC (Seoul*** district court 2016******) against BB, and CCC on the ground that BB and CCC had already sold the shares of this case as above *****,****,***,****************),**00,00 (5,000 +**00)) as part of the shares of this case, and the Plaintiff was changed to the purport of the claim for return and the cause of the claim. The above court ordered the Plaintiff to pay KRW 5 million to the Plaintiff on the ground that BB and CCC had already sold the shares of this case as above, and that both the Plaintiff and BB and CCC have not become final and conclusive.

[Ground of recognition] Facts without dispute, Gap evidence 5 through 7, Eul evidence 4 through 9, evidence 11 (including each number), the purport of the whole pleadings

2) Determination

The main sentence of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act provides that where the actual owner and the nominal owner are different from the property (excluding land and buildings), the value of the property shall be deemed donated to the actual owner on the date when the registration, etc. is made to the actual owner (where the property is subject to a change of ownership, referring to the day 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. The purpose of this provision is to effectively prevent title trust, which the actual owner of the property is only the name for the purpose of tax avoidance, and to realize tax justice by effectively preventing title trust (see Supreme Court Decision 2011Du10232, Feb. 21, 2017).

In full view of the facts acknowledged earlier and the overall purport of the pleadings, the Plaintiff, at the time of joining the non-party company, was re-titled with the shares of this case which were already in title trust with the new** at the time of re-titled with the shares that were already in title trust with the non-party company* on *.* on 2008. At the request of the LIMF party, the actual owner of the shares of this case, the Plaintiff may be deemed to have again donated the shares of this case to BB and CCC. Accordingly, the Plaintiff’s assertion that

① The time when the Plaintiff acquired the instant shares is about two months after the time when the Plaintiff entered the non-party company, and the contract drafted at the time is also a share transfer agreement. If the Plaintiff either received the instant shares in lieu of payment or received them through a kind of Stockholm option as alleged by the Plaintiff, then there is no reason to make the appearance that the Plaintiff received from the non-party company in the form of transfer and acquisition by reducing such genuine cause. Considering that the Plaintiff had already been aged 57 at the time when the Plaintiff entered the non-party company, the benefits that the Plaintiff received from the non-party company cannot be deemed to be less. The instant shares were already transferred to the Plaintiff * even before the transfer of the shares to the non-party *, the Plaintiff could have easily known the reason for changing

② If the Plaintiff actually acquired the ownership of the instant shares, it was difficult for the Plaintiff to unilaterally force the return of the instant shares on the part of LIMF or BB, and the Plaintiff did not have any reason to comply with it. The Plaintiff also asserted that the Plaintiff had no choice but to donate the instant shares to the non-party company for more work. However, BB and CCC assessed the instant shares at least KRW 100 million when filing a gift tax on the instant shares and transferring the instant shares to the non-party company. This is more than the sum of the benefits received by the Plaintiff while working in the non-party company until 2014 after the donation of the instant shares.

③ Even after the withdrawal from the non-party company, the Plaintiff filed a lawsuit against BB and CCC by asserting that the shares of this case were donated by duress only after the disposition of this case was taken against the non-party company. The Plaintiff, in the lawsuit, revised the purport of the claim that the shares of this case were already sold to the non-party company in 2009, and did not object to the compulsory adjustment decision to the effect that “BB and CCC shall pay the Plaintiff KRW 5 million, respectively. In full view of the time of the lawsuit, details of the claim, the outcome of the lawsuit, etc., it is highly probable that the lawsuit was brought to affect the lawsuit of this case that the Plaintiff did not receive title trust.

④ In this Court 2017Guhap*** In addition to the Plaintiff, another title trustee, such as the actual owner of the non-party company’s shares, seems to be arguing that the actual owner of the non-party company’s shares is not LIM but BB. However, even if the ownership of the shares in this case is recognized as BB rather than LIM, the title truster is not entitled to apply the provision on the constructive gift of title trust only when the title truster is specified, but the Plaintiff does not assert and prove that the title truster of the shares in this case is BB and BB has no tax avoidance purpose. Therefore, the conclusion of this case

B. Whether the purpose of tax avoidance exists

1) The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the principle of substantial taxation to the purport that the tax justice is realized by effectively preventing the act of tax avoidance using the title trust system. The burden of proving that there was no purpose of tax avoidance is the person asserting it, and that there was no purpose of tax avoidance, it may be proven by means of proving that there was another purpose, not the purpose of tax avoidance. However, as the title holder bearing the burden of proof, there was an obvious purpose of tax avoidance in the title trust, to the extent that it is recognized that there was no purpose of tax avoidance in the title trust, and that there was no intention of tax avoidance at the time of the title trust or in the future, to the extent that it would not be doubtful if ordinarily there was no objective and objective evidence that there was no tax avoidance at the time of the title trust (see, e.g., Supreme Court Decision 2012Du546, Nov. 28, 2013).

2) Even if the instant shares were held in title trust, the Plaintiff merely asserts that there was no tax avoidance purpose, and did not assert and prove the fact that there was a clear purpose other than a tax avoidance purpose. On the other hand, in light of the legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, it can be seen as one of the methods of tax avoidance to evade the payment of taxes by falsely entering the state without any property under title trust. According to the facts and the purport of the argument as seen earlier, LIM * * * *. * New shares of the non-party company including the instant shares *******, * the Plaintiff’s total amount of national tax at the time of title trust, * the amount of capital gains tax at the time of the Plaintiff’s acquisition of shares under the name of the non-party company 1’s new shares * the amount of national tax at the time of title trust * the amount of national tax at the time of the Plaintiff’s acquisition of shares under the name of the non-party 1’s new shares * the amount of capital gains tax for the new shares 10000.

C. Whether the appraised value of the instant shares is lawful

1) According to Article 63(1)1 (c) of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, which provides for the supplement method of unlisted stocks; Article 63(1)1 (c) and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the net value per share of the preceding three years (the weighted average amount of profit and loss per share for the preceding three years ± net asset value per share of the relevant corporation ± the weighted average amount of profit and loss per share (the net asset value of the relevant corporation ± the total number of issued stocks) and the net asset value per share (the weighted average amount of profit and loss per share for the preceding three years ± the net value per share * the net value per share * the net value per share 60 years * the net value per share 10 years * the net value per share 6 years * the net value per share 10 years 】 (the average value of profit and loss per share before the preceding year 2 years 】 the net value per share 13 years 】

According to the above facts, although the net profit and loss of the non-party company for the business year of 2004 is remarkably higher than the business year of 2003 and 2005, there is no big difference between the gross profit and operating profit from the last three years to 2005 from the date of title trust of the stock of this case. However, according to the evidence No. 15, in 2004, the net profit from the equity profit of the non-party company (*********) in 203 (0 won), 205 (**) in 200, *** in * in * in * in * in * in * in * in 106, * in * in * in * in 106, * in * in 106, * in * in * in * in * in * in * in 1007, * in * in * in * in * in * in * in * in * in * in * in * in 10. * in * in * in * in * in * in * in * in 20. * in * in * in * in * in .

5. Conclusion

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