Whether it constitutes a stock title trust

The title trust agreement and the agreement on the termination of the title trust include the content on the title trust, attached with a certificate of seal imprint, and all circumstances such as the source of funds paid in the course of incorporation and capital increase of a company fall under the title trust.

Article 41-3 of the former Inheritance Tax and Gift Tax Act

Article 31-6 of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act

1. The Defendant’s disposition of imposing gift tax amounting to KRW 2,679,706,40 against the Plaintiff on August 11, 2006 shall be revoked.

2. The plaintiff's remaining claims shall be raised.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s imposition of KRW 2,679,706,40 on August 11, 2006 and KRW 184,888,430 on the gift tax against the Plaintiff is revoked (the imposition of KRW 2,864,594,830 on the gift tax stated in the purport of the complaint seems to have been indicated by adding up the tax amount on the gift tax).

1. Details of the disposition;

A. On April 10, 200, the Plaintiff acquired 70,628 shares (hereinafter referred to as "each of the shares in this case") in total, including 13,028 shares (hereinafter referred to as "the shares in this case"), 13,028 shares (hereinafter referred to as "the shares in this case"), 57,600 shares (hereinafter referred to as "the shares in this case") from ○○○○ Co., Ltd. (hereinafter referred to as "the shares in this case"), which are the Plaintiff's wife, from 00 to 5,000 won per share, and registered with the Korea Securities Dealers Association on December 13, 2001.

B. On March 31, 2002, the date of the registration of the shares of the non-party company, the value of each of the shares of this case increased by 30% or more than the original taxable amount of gift taxes or the acquisition value of the shares as of March 31, 2002, the defendant deemed that the profit accrued from the registration of the shares was donated pursuant to the provisions of Article 41-3 of the Inheritance Tax and Gift Tax Act. On August 11, 2006, the defendant decided and notified the plaintiff of KRW 2,679,70,40 and KRW 184,88,430 calculated as follows (hereinafter referred to as "the imposition disposition of KRW 2,679,706,40" and "the imposition disposition of KRW 184,88,430" and "each disposition of this case" collectively referred to as "each disposition of this case").

Table Omission of the Table

[Ground of recognition] Facts without dispute, Gap evidence 1, 9, Gap evidence 11-1, Eul evidence 1-1 to Eul evidence 2-1, Eul evidence 1-4, Eul evidence 10-4, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff’s acquisition of each of the shares of this case from Lee Jong-woo, the wife on April 10, 200, was merely a return to the Plaintiff’s original name at the time of the establishment of the non-party company, and thus, it was unlawful for the instant disposition that the Plaintiff acquired each of the shares of this case from Lee Jong-woo, the wife on April 10, 200, by reason of donation or transfer under Article 41-3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as the “Act”).

(b) Fact of recognition;

(1) Details of the establishment of the non-party company and capital transactions

(A) On April 2, 1991, the non-party company was established as a capital of KRW 50 million and increased in KRW 750 million by 1998,000,000 by 199, and the total amount of KRW 1.2 billion over three times in 1999, as follows, increased in capital as of April 10, 200.

(B) Meanwhile, the details of acquisition of shares in the non-party company’s 200 business year statement (Evidence No. 10-3) are as follows. In particular, on April 10, 200, 00, ○○ and ○○○ transferred each of the shares of the non-party company’s 130,280 shares of the non-party company to ○○ Kim Ho who is his mother, the plaintiff’s mother, and her mother, transferred 130,280 shares of the non-party company to ○○, the non-party company’s son, the son, the son’s wife, also on the same day, transferred 217,150 shares of the non-party company to this non-party company to this non-party ○, who is son, the son, the plaintiff’s wife, and the non-party company did not object to the disposition of this case. The defendant, on the same day, deemed that the non-party company’s shares were donated each of the non-party company’s shares, and imposed KRW 397,7,7,130.

(C) In addition, with respect to the transfer of each of the shares of this case to the Plaintiff as of April 10, 200, the details on which securities transaction tax was reported and paid under the name of this case and this objection are as follows.

(2) The Plaintiff and ○○ regarding the instant shares shall prepare a gift agreement.

(A) With respect to the transfer of the shares of this case from Lee ○, the Plaintiff prepared the share donation contract (No. 2-2, hereinafter referred to as the "the share donation contract of this case") with Lee ○ in relation to the transfer of the shares of this case, and entered into the said share donation contract (No. 2-2, hereinafter referred to as the "the share donation contract of this case"). The above share donation contract states that " Lee ○ shall determine 13,028 shares of the non-party company as KRW 130,709,924 of the total subscription price of 130,028 shares as KRW 130,033 of the non-party company's total subscription price of 130,709,924, and the plaintiff shall give ○

(B) On April 28, 2003, the defendant, based on the gift contract of this case, decided that the plaintiff was not subject to gift tax on the transfer of shares No. 1 from this case.

(3) The circumstances leading up to which Lee Jong-woo became a shareholder of the non-party company and the progress of the second disposition of this case

(A) The plaintiff's agent, Kim Dong-dong, the plaintiff's birth, and his marriage report was completed on June 11, 1987, and on May 26, 1985, he was employed in the CD sales team to engage in domestic business at the CD sales team, and retired on February 13, 199. On April 1, 1999, he was employed in the non-party company's subsidiary company and the plaintiff was the representative director at the ○○○○○○○○○○○○○, the plaintiff's representative director on December 14, 200, and served in the above company until now.

(나) 원고 내지 이○우의 명의로 발급된 각 통장사본(갑 제6 내지 8호증)에 의하면, 1999.8.12.부터 1999.12.16.까지 이들 앞으로 개설된 계좌로부터 다음과 같이 금원이 인출된 내역이 확인되는바, 이 중 이○우의 명의로 된 ○○은행 계좌는 1999.8.3. ○○은행 신사동 지점에서 원고의 어머니인 김○희의 인장을 위 곚와 인감으로 등록하여 개설된 것으로서 소외 회사가 거래처로부터 수취한 어음을 원고가 할인하여 소외 회사에 그 금원을 지급하는 대신 원고 개인에게 위 어음을 입금시키는 용도로 주로 사용되었다.

(C) According to the corporate register of the non-party company, the non-party company was registered as a director of the non-party company on April 2, 1991, and was reappointed on April 2, 1994, but resigned on April 16, 1995, and again, the non-party company was appointed as a director on March 31, 200, and then resigned on September 22, 200. Thus, the non-party company was present at the meeting of the non-party company during the above position as a director.

(D) Meanwhile, with respect to the transfer of the instant 2 shares to the Plaintiff, the Defendant considered the acquisition value and transfer value of the said shares as KRW 5,000 per share, and decided that the said shares fall short of capital gains tax as of November 17, 2003.

[Ground of Recognition] A without dispute, Gap evidence 1, 4 through 8, Eul evidence 10-1 to 13-3, Eul evidence 2-1 to 4-1, 2, Eul evidence 7-1 to 15, Eul evidence 17-2, Eul evidence 17-1 to 18-2, Eul evidence 17-1 to 18-2, the purport of the whole pleadings

(c) Related statutes;

Article 41-3 of the former Inheritance Tax and Gift Tax Act

Article 31-6 of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act

D. Determination

(1) In general, the burden of proving the requirements for taxation in a lawsuit seeking revocation of the disposition imposing tax shall be borne by the imposing authority. However, if it is revealed that the requirements for taxation are presumed in light of the empirical rule in the specific litigation process, the other party cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the requirements for taxation unless it proves that the pertinent fact at issue is not eligible for the application of the empirical rule (see, e.g., Supreme Court Decision 97Nu13894, Jul. 10, 199

(2) First of all, as seen earlier, the Plaintiff prepared the instant donation contract with ○○ and submitted it to the Defendant that the Plaintiff would receive the gift of 1 shares, as seen earlier, regarding the instant disposition No. 1, and the Defendant, based on this, did not impose gift tax on the Plaintiff as to the gift of 1 shares against ○○. Accordingly, the taxation requirement that the Plaintiff donated 1 shares to the Plaintiff is presumed to be acceptable.

However, in light of the following circumstances revealed in the above facts, i.e., ① the agreement between the Plaintiff and Lee ○ does not have existed on the present hand that the title trust agreement was made with respect to the shares No. 1 in this case; ② Even if the Plaintiff and Lee ○ did not prepare the title trust agreement, in view of the characteristics of the husband and wife, there is no direct evidence to prove that the purchase price of shares No. 1 in this case was paid by the Plaintiff or the Plaintiff exercised its rights as a shareholder in the process of the establishment, etc. of the non-party company, etc.; ③ further, there is no objective evidence to prove that the specific circumstance of the donation agreement in this case and the above donation agreement were made up as part of returning the shares held in title trust to the Plaintiff’s name, and there is no objective evidence to prove that the above donation agreement was made out as part of returning the shares held in title trust to the Plaintiff’s name.

(3) Next, considering the following facts: (a) it is difficult to look at the ○○○○○○ Co., Ltd.’s 200 shares issued by Nonparty 2; (b) this case’s ○○○○○○ Co., Ltd.’s 200 shares were transferred to the Plaintiff under the name of Nonparty 1; (c) this case’s ○○○○○ Co., Ltd.’s 1,584,00 shares were transferred to the Plaintiff on Apr. 10, 200 on the premise that the 200 shares were transferred to the Plaintiff; and (d) this case’s 20th Co., Ltd.’s 20 shares issued by Nonparty 1’s 7th ○○○ Co., Ltd.’s 90 shares issued by Nonparty Co., Ltd.’s 7th 90 shares issued by Nonparty Co., Ltd.’s 2, which were indicated in the name of Nonparty 1’s title trust agreement or the overall purport of this case’s ○ Co.

(4) Therefore, the part concerning the first disposition of this case among the plaintiff's assertion is without merit. However, since the part concerning the second disposition of this case is with merit, the second disposition of this case against the plaintiff should be revoked.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.