Seoul Administrative Court 2010Du7277 ( December 24, 2012)

Only a detailed statement on changes in stocks, etc. was prepared, but no change of entry was made in the name of the Plaintiff in the register of shareholders, and thus, the instant shares cannot be deemed as

There is no evidence to prove that the non-party company has prepared and kept the register of shareholders, and that the change of entry into the register of shareholders was made in the name of the plaintiff, and this part of the plaintiff's assertion is reasonable

2012Nu14783 Revocation of Disposition of Imposition of Gift Tax

AA

Head of Yeongdeungpo Tax Office

Seoul Administrative Court Decision 2007Guhap43488 Decided July 22, 2009

100.00.00

Seoul High Court Decision 2009Nu26250 Decided March 25, 2010

Supreme Court Decision 2010Du7277 Decided May 24, 2012

July 5, 2013

August 30, 2013

The defendant's appeal is dismissed.

The defendant shall bear the total costs of the lawsuit after the filing of the appeal.

The Defendant’s disposition of imposition of gift tax OOO on April 6, 2007 against the Plaintiff is revoked.

The first instance judgment is revoked in the purport of appeal, and the plaintiff's claim is dismissed.

1. Circumstances of dispositions;

In addition to adding the following two paragraphs to the second written judgment of the court of first instance, the corresponding part of the written judgment of the court of first instance is as follows (No. 3 to No. 15).

C. During the trial of the first instance, the Defendant added the grounds for disposition to the effect that the Plaintiff is deemed to have donated the instant stocks from BB pursuant to Article 41-2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter “former Inheritance Tax and Gift Tax Act”).

2. The plaintiff's assertion

A. The Plaintiff did not intend to receive the instant share acquisition fund from the Plaintiff, and merely acquired the instant shares by stealing the Plaintiff’s name in order to maintain corporate governance.

B. The instant shares were prepared only in the statement of changes in stocks, etc., and the register of shareholders did not enter into a transfer under the name of the Plaintiff. Therefore, the instant shares cannot be deemed as a title trust to the Plaintiff

C. Even if the title trust on the instant shares is recognized, and Article 41(2) of the former Inheritance Tax and Gift Tax Act provides that the purpose of tax avoidance is not presumed if the transferor has reported the content of ownership change along with the return on the tax base of transfer income. Since CCC and 10 other than the transferor of the instant shares declared the tax base of transfer income, the purpose of tax avoidance cannot be presumed in this case.

D. In addition, the instant shares are originally nominal trust to other employees, and they are transferred under the Plaintiff’s name or transferred under the Plaintiff’s name due to the need for BB to maintain a certain percentage of shares in the process of a merger. Therefore, not only the purpose of tax avoidance but also the possibility of tax avoidance is nonexistent.

E. The Plaintiff’s actual owner of the instant shares was merely a restoration of the name of the Plaintiff’s shares owned by another person.

3. Related statutes;

It is as shown in the attached Form.

4. Determination

A. Whether the Plaintiff received the donation of the acquisition price of the instant shares

In addition to the correction of "DD" in Part 3 of the decision of the court of first instance as "E", the corresponding parts of the decision of the court of first instance are as shown in the corresponding parts of the decision of the court of first instance (No. 17 to No. 4, No. 11).

(b) Whether a change of entry in the register of shareholders has been made;

1) Article 41-2 (1) of the former Inheritance Tax and Gift Tax Act provides that, in case where the actual owner and the nominal owner are different from the property that requires a transfer or exercise of the right, the value of the relevant property shall, in principle, be deemed to have been donated by the actual owner on the day when the actual owner registers, etc. as the nominal owner. However, the transfer of registered shares does not oppose the company unless the acquisitor’s name and address are entered in the register of shareholders, and it constitutes a case where the actual owner and the nominal owner are different from the property that requires a transfer or exercise of the right (see, e.g., Supreme Court Decision 2005Du10200, Feb. 8, 2007). Meanwhile, even if the change of shares and equity shares, which are documents to be submitted along with a report on the tax base and tax amount of corporate tax, were stated in the register of shareholders and the statement on the change of shares, the change of shares cannot be deemed to have been reported (see, e.g., Supreme Court Decision 2003Nu4.

2) In light of the above legal principles, there is no evidence to support that the instant case was prepared and kept a register of shareholders, and that the non-party company had a change of entry in the name of the Plaintiff with respect to the instant shares, and that part of the Plaintiff’s assertion is reasonable (the Defendant, and the Plaintiff alleged that the Plaintiff was a change of entry with respect to the instant shares in the name of the Plaintiff on the register of shareholders. However, according to the records, the Plaintiff asserted that BB acquired the instant shares by stealing the Plaintiff’s name in order to maintain corporate governance, etc. in principle, and it is difficult to deem that the Plaintiff was a change of entry with respect to the instant shares in the name of the Plaintiff on the register of shareholders).

3) Therefore, the instant disposition based on the premise that the instant shares were held in title trust to the Plaintiff is unlawful without need to further examine.

5. Conclusion

If so, the judgment of the first instance court is legitimate in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.