Whether the disposition imposed on the legal fiction of title trust donation is legitimate where shares are held in title trust between persons with a special relationship.

The imposition of gift tax by the defendant cannot be said to have no purpose of tax avoidance in the case where the plaintiff and the person with a special relationship nominal trust of the company shares to the plaintiff.

Donation of title trust property under Article 41-2 of the Inheritance Tax and Gift Tax Act

1. The appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiff.

Although examining all of the records of this case and the judgment of the court below and the grounds of appeal, it is clear that the appellant’s ground of appeal falls under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal, and thus, it is dismissed under Article 5 of the same Act. It is so decided as per Disposition by the assent

[Miningju High Court 2006Nu3048 (Law No. 10, 2008)]

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of KRW 1,400,000 in 1999 as gift tax against the plaintiff on December 29, 2005 and KRW 56,739,850 in 202.

1. Details of the disposition;

A. On December 22, 199, ○○ Co., Ltd. (hereinafter the “Non-Party Company”) was established and registered as an auditor of the Non-Party Company from the date of incorporation to March 31, 2005, which was the date of cessation of business. The register of shareholders of the Non-Party Company was registered as a shareholder holding 3,000 shares out of 10,000 shares issued at the time of incorporation of the Plaintiff. The statement on the change of shares in the business year of 2002 submitted to the Defendant by the Non-Party Company, the Plaintiff acquired 20,000 shares out of 20,000 shares issued by the Non-Party Company on February 26, 2002.

B. As a result of the investigation into the non-party company, the head of ○○○ Tax Office confirmed that the Plaintiff was an oligopolistic shareholder because the Plaintiff was in a special relationship with the non-party company, the representative director of the non-party company, and that the Plaintiff’s shares owned by the non-party company fall under 80% of the total outstanding shares of the non-party company, and then preserved the Plaintiff’s property before the determination of national taxes.

C. The Plaintiff issued a certificate of personal seal impression to the head of the above ○○○ Tax Office upon the request of the head of the above ○○○ Tax Office, but did not have any participation in the operation of the non-party company, and thus requested the cancellation of the designation of the second taxpayer. The head of the ○○ Tax Office confirmed that the stock price in the name of the Plaintiff was paid by the above ○○○ at the time of the establishment of the non-party company and the capital increase for new shares, and notified the Plaintiff to impose gift tax pursuant to Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 202) on the instant shares instead of excluding the Plaintiff from the second taxpayer.

D. On February 15, 2005, the Defendant deemed that the Plaintiff’s 3,00 shares (value 15,000,000) acquired at the time of incorporation and 6,00 shares (value 236,430,000) acquired at the time of capital increase with capital increase was in title trust with the Plaintiff by Park ○○, who was in title trust with the Plaintiff, determined and notified the Plaintiff of KRW 1,40,000 of gift tax in 199, and KRW 56,739,850 of gift tax in 202 (hereinafter the instant disposition) (hereinafter the instant disposition).

E. On May 9, 2005, the Plaintiff filed an appeal with the National Tax Tribunal on the instant disposition, but the said appeal was dismissed on January 2, 2006.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 5 (including each number), part of the testimony of Park Jong-○'s witness of the first instance court, the purport of the whole pleadings

2. The parties' arguments and issues

A. The plaintiff's assertion

① The Plaintiff only issued a certificate of personal seal impression by stating that Park ○, one’s own negligence, entered the Plaintiff as the auditor of the non-party company. The Plaintiff’s arbitrary acquisition of the instant shares in the name of the non-party company is not nominal trust to the Plaintiff. ② Even if the instant shares were held in title trust, it is for the management convenience of the company, such as based on the number of promoters and shareholders, and thus, the instant disposition is unlawful.

B. Defendant’s assertion

이에 대하여 피고는, 박ㅇㅇ는 조세를 회피할 목적으로 원고에게 위와 같이 소외회사의 주식을 명의신탁하였고, 실제 이로 인하여 세부담 감소라는 이익을 얻었으므로, 원고에 대한 이 사건 처분은 정당하다고 다툰다.

C. Key issue of the instant case

따라서 이 사건의 쟁점은 ① 박ㅇㅇ가 원고에게 소외회사의 주식을 명의신탁한 것인지, ② 명의신탁한 것이라면 조세회피 목적이 있었는지 여부라 할 것이다.

3. Relevant provisions;

Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002) (Presumption of Donation of Title Trust Property)

(1) In case where the actual owner and the nominal owner are different in property (excluding the land and buildings; hereafter in this Article the same shall apply), which requires a registration, etc. for the transfer or exercise of rights, the value of the relevant property shall be deemed to have been donated by the actual owner on the date when it is registered, etc. as the nominal owner, notwithstanding the provisions of Article 14 of the Framework Act on National Taxes:

1. Where assets are registered, etc. in the name of another person without any purpose of tax avoidance;

2. Where the title is converted to the name of the actual owner during the period until December 31, 1998 (hereafter in this Article, referred to as the "suspension period") from among the stocks or equity shares (hereafter in this Article, referred to as the "stocks, etc."): Provided, That the same shall not apply where the title is converted to the name of a person in a special relationship with the stockholders (including investors) of the corporation which issued the relevant stocks, etc., or that of a person who is a minor as of January 1, 1997, with respect to the stocks, etc. which have been entered in the stockholders’ list or the stockholders’ list in the name of a third person

(2) Where property is registered, etc. in the name of another person and the name of stocks, etc. is not converted into the name of the actual owner during the grace period under paragraph (1) 2, it shall be presumed that there exists an objective of

[This Article Newly Inserted by Act No. 5584, Dec. 28, 1998]

4. Determination

A. Determination on whether title trust is held

먼저 박ㅇㅇ가 원고의 허락 없이 임의로 원고를 소외회사의 주주명부에 등재하고 원고 명의로 소외회사 주식 9,000주를 취득하였는지에 관하여 보건대, 박ㅇㅇ의 일부 증언 만으로는 이를 인정하기에 부족하고 달리 이를 인정할 만한 증거가 없고, 오히려 제1심 법원의 등촌제3동장에 대한 사실조회 결과에 변론전체의 취지를 종합하여 보면, 원고는 1999. 12. 18.과 2002. 2. 9.경 직접 본인의 인감증명을 발급받은 사실, 소외법인의 2002. 2. 21.자 이사회회의록과 같은 날자 원고 명의의 주식청약서도 원고의 인감이 날인되어 있는 사실을 인정할 수 있을 뿐이므로, 박ㅇㅇ가 원고에게 위 주식을 명의신탁한 것이 아니라는 원고의 주장은 이유 없다.

B. Determination as to whether the purpose of tax avoidance exists

The legislative purport of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act is to effectively prevent the act of tax avoidance using the title trust system and realize the tax justice. As such, the proviso to Article 41-2(1) of the former Inheritance Tax and Gift Tax Act is applicable only where the purpose of tax avoidance is not included in the purpose of the title trust, the application of the proviso to Article 41-2(1) is not limited to the gift tax, and the burden of proving that there was no purpose of tax avoidance in the title trust is against the person who asserts it (see, e.g., Supreme Court Decision 2004Du142

따라서 원고에게 명의신탁으로 인한 조세회피목적이 없었는지 보건대, 갑 제4 내지 8호증(가지번호 포함)의 각 기재만으로는 이를 인정하기 부족하고 달리 이를 인정할 증거가 없고, 오히려 을 제3, 11호증(가지번호 포함)의 각 기재에 변론 전체의 취지를 종합하여 보면, 소외회사 설립 당시에는 발기인이 3인 이상이면 주식회사의 설립이 가능하였기 때문에 원고를 제외하고도 회사설립에는 지장이 없었던 사실, 2004년경 소외회사에 대한 탈세제보에 따른 조사과정에서 원고와 박ㅇㅇ가 특수관계에 있는 자임이 밝혀짐으로써 비로소 박ㅇㅇ 및 원고가 제2차 납세의무자로 지정된 사실, 2008. 1. 15. 현재 박ㅇㅇ가 체납하고 있는 국세(2000. 1. 회사설립시부터 2004. 12. 31.까지 발생분)는 박ㅇㅇ가 소외회사의 발행주식을 보유한 정도에 따라 910,758,918원의 차액이 발생하게 되고(50% 보유시 1,517,931,530원, 80% 보유시 2,428,690,448원), 소외회사가 일부 납부한 391,319,350원을 제외하더라도 그 액수가 519,439,568원에 이르는 사실을 인정할 수 있을 뿐이므로, 결국 위와 같은 명의신탁에 조세회피 목적이 없었다는 원고의 주장은 이유 없다.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is in conclusion, and it is so decided as per Disposition.