Cho High Court Decision 2009No4006 (Law No. 19, 2010)

It is difficult to regard the details of transfer of a trustee stored by the bank as the register of shareholders.

It is difficult to regard the details of transfer of a truster kept electronically by a bank as the list of shareholders, and even if the fact of transfer of shares is entered in the details of transfer of a truster, it is difficult to deem that it meets the requirements for deemed donation as long

1. The Defendant’s imposition of gift tax of KRW 396,818,950 on June 2, 2009 and the imposition of KRW 39,528,00 on the gift tax of KRW 39,528,00 for the year 2008 against the Plaintiff headB shall be revoked.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of dispositions;

A. From April 24, 2008 to June 13, 2008, the director of the Central District Tax Office: (a) as a result of the investigation of stock change of △△ Telecom Co., Ltd. (hereinafter referred to as a “non-party company”) between April 24, 2008 and June 13, 2008, the director of the Central Tax Office determined that the non-party company shares 338,230 shares of the non-party company to the plaintiff on September 27, 2007 and October 15, 2007 (i) the non-party company shares 288,230 shares + the Plaintiff head of the non-party 28,230 shares + the Plaintiff 50,00 shares shares + the Plaintiff 250,00 shares shares (hereinafter referred to as “the shares of this case”) and notified the Defendant of the taxation data.

B. Accordingly, the Defendant deemed that the Plaintiffs received the title trust of the shares of this case from thisCC and completed the transfer of title on February 5, 2008, and issued a disposition of imposition of KRW 39,528,000, gift tax of KRW 39,528,00 on June 2, 2009 and KRW 39,528,00,00 (hereinafter collectively referred to as "the disposition of this case") against the Plaintiff head-B pursuant to Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter referred to as "the disposition of this case").

[Reasons for Recognition: Facts without dispute; Gap evidence of No. 3; Eul evidence of No. 1 to 3; 1 through 3; 3; 1 through 5; 7-1 through 3; 8-1 through 3; 9-1 through 3; 9-1 through 3; 10-1 through 3; and 11-3; the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' claims

No change has been made in the name of the Plaintiffs with respect to the shares of the non-party company in the register of shareholders, which was made between 2007 and 2008, and the details of transfer of the name of a truster in the preparation of ○ Bank (hereinafter referred to as “○○ Bank”) which is an agent of the non-party company cannot be deemed as the register of shareholders

B. Relevant statutes

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

Article 45-2(1) of the Inheritance Tax and Gift Tax Act provides that, in case where the actual owner and the nominal owner are different from the property which requires a registration, etc. for the 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 date on which the actual owner registers, etc. as the nominal owner in the register of shareholders. Thus, the transfer of registered shares cannot be asserted against the company unless the name and address of the acquisitor are entered in the register of shareholders. Thus, insofar as the transfer of the right, which is the requirement for deemed donation under Article 45-2(1) of the Inheritance Tax and Gift Tax Act, is not different from the actual owner and the nominal owner, in property requiring a transfer of the right or exercise of the right, which is the requirement for deemed donation under Article 45-2(1) of the Inheritance Tax and Gift Tax Act, which is a document to be submitted at the time of reporting the tax base and tax amount of the corporate tax, and thus, even if the change of shares was reported in the list of shares and equity shares,

Meanwhile, Article 45-2(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003) provides that where the list of shareholders is not prepared, a transfer of shareholders shall be determined based on the statement of changes in stocks, etc. submitted to the head of the district tax office having jurisdiction over the place of tax payment. However, the above provision provides that where a corporation, etc. fails to prepare the list of shareholders, etc., it shall not be deemed that "where the list of shareholders, etc. is not prepared," and "where the list of shareholders, etc. is not entered in the list of shareholders," it shall not be deemed that "where the list of shareholders is not entered in the list of shareholders, etc." and "where the list of shareholders, etc. is not entered in the list of shareholders, it shall be deemed that the transfer of shareholders is necessary for the exercise of shareholders' rights; where the list of shareholders is prepared, the entry in the list of changes in rights does not change solely on the basis of the statement of changes in stocks, etc.

Therefore, comprehensively taking account of the overall purport of pleadings as to whether the transfer of rights to the shares of this case was made under the name of the plaintiffs, Gap evidence 2, Eul evidence No. 6, and Eul, the non-party company's transfer agent under Article 337 (2) of the Commercial Act (amended by Act No. 9362 of Jan. 30, 2009). The plaintiffs filed an application for transfer of rights to the shares of this case with ○○ Bank on February 5, 2008. Accordingly, the ○○ Bank's name (CC), transferee's name (288,230, 2000, 2000, 200, 200, 300,0000,000,000,0000,000,000,0000,000,0000,000,0000,000,0000,000.

3. Conclusion

Thus, the disposition of this case is unlawful, and all of the plaintiffs' claims seeking its revocation are justified, and they are accepted respectively, and it is so decided as per Disposition.