Seoul Administrative Court 2008Guhap25425 ( October 08, 2009)

National High Court Decision 2007Du4755 (O. 21, 2008)

Appropriateness of the assertion that there was no tax avoidance purpose in stock title trust

In light of the fact that the Act on the Requirements of Promoters was amended at the time of the establishment of a company, it is difficult to understand that the fact that the total amount of dividend income did not have the purpose of tax avoidance due to the small amount of tax, but the purpose of tax avoidance exists in light of the average wage of Korea.

The contents of the decision shall be the same as attached.

1. All appeals filed by the plaintiffs are dismissed.

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

Purport of claim and appeal

The judgment of the court of first instance shall be revoked. The defendants shall revoke the disposition of imposition in the attached Form and the statement of details, and the disposition of imposition of gift tax.

1. Quotation of judgment of the first instance;

The court's explanation on this case is identical to the reasoning of the judgment of the court of first instance except for the following advanced portions among the judgment of the court of first instance. Thus, this Court shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Attachment]

(a) revise each of the 'mainly 's two parallels and tables' to 'mainly '○';

(b)"203.20% of the 2003.0% of the 4th Schedule to Kim, Kim, su, the following additions to the following:

1, 2차 유상증자에서는 각 그 유상증자 직전에 주주로 등재된 자 전원이 각자의 지분율에 따라 신주를 인수하였고(원고 신★★는 2차 유상증자에서 4,000주를 인수하여 총 8,000주의 명의상 주주가 되었다가, 2005사업년도 중 주○○과 조●●에게 각 4,000 주를 이전하였다), 조◇◇의 딸 조●●는 2002년 명의신탁된 주식 중 1,000주(10%)를 취득하였으며, 그 지분율에 기하여 1, 2차 유상증자에서 합계 7,000주를 인수하였고, 2005년과 2006년에 걸쳐 명의신탁된 주식 중 8,000주를 양수하여 그 지분율을 20%(16,000주)로 끌어 올렸으며, 아들 조◎◎은 2004년 주○○의 주식 중 4,000주(10%)를 증여받았고, 그 지분율에 기하여 2차 유상증자에서 4,000주를 인수하였는데, 조●●와 조◎◎이 위 명의신탁된 주식을 양도받은 가액은 모두 액면가 이고, 조◇◇은 위 세무조사 당시 조●●의 증자대금 중 5,000주에 관한 부분 및 조◎◎의 4,000주 전부의 증자대금을 증여하였다고 인정하였다.

"다. 제5면 9행의 '갑1~3' 부분 다음에 6'을 추가 다. 제5면 12행의 '원고들은' 부분 앞에, (1)'을 추가 라.제5면 20행 다음에 아래의 내용을 추가",(2) 회사설립시점의 주식 명의신탁에 대하여 증여의제규정 등이 적용된다면, 명의수탁자에서 명의수탁자로 주식이 이전된 것은 새로운 명의선탁으로 볼 수 없으므로, 이러한 경우에까지도 명의신탁의 증여의제규정 등을 적용한 것은 위법하다(원고 김☆☆, 김◆◆, 김□□, 성■■, 정△△를 제외한 나머지 원고들에 관한 주장).

(3) 1, 2차 유상증자시 명의신탁된 기존 지분율에 따라 인수한 것은 지분율에 변동이 없어 주식의 실질가치에 변동을 가져오지 아니하므로, 유상증자에서는 주금으로 납입된 액수만을 증여의제 재산가액으로 하여야 한다(원고 김◆◆, 김□□, 성■■, 정△△를 제외한 나머지 원고들에 관한 주장).

(e)on the seventh following the last run:

Article 63 (Evaluation of Securities, etc.)

(1) The appraisal of securities, etc. shall be conducted by the following methods:

1. Appraisal of stocks and investment shares:

(a) The average amount of stocks and equity shares traded on the Korea Stock Exchange shall be the average amount of the final market price ( regardless of whether there is any transaction record) of the Korea Stock Exchange every two months before or after the evaluation base date: Provided, That in the calculation of the average amount, in cases where it is inappropriate to apply the average amount of stocks and equity shares traded on the Korea Stock Exchange due to any cause, such as capital increase or merger, etc., during two months before or after the evaluation base date, the average amount of the periods calculated as prescribed by Presidential Decree between two months before

(b) The provisions of item (a) shall apply mutatis mutandis to the stocks and equity shares as prescribed by the Presidential Decree from among the stocks and equity shares of the Association-registered corporations as prescribed by the Presidential Decree. In this case, the final market

(c) The stocks and investment shares not listed in the Korea Stock Exchange other than those as referred to in item (b) shall be assessed in such a way as prescribed by the Presidential Decree, by removing the assets and profits of the corporation concerned

2. The appraisal of securities, such as State bonds and public bonds, other than those under subparagraph 1 shall be appraised according to the methods prescribed by Presidential Decree in consideration of the types, scale, transaction conditions, etc. of the

In the application of the provisions of paragraphs (1) 1 and (12), 20/100 (10/10 in cases of small and medium enterprises prescribed by Presidential Decree) of the appraised value under the provisions of paragraphs (1) 11 and (2) of this Article (excluding stocks, etc. of corporations that have losses under the provisions of Article 14 (12) of the Corporate Tax Act continuously from business year within three years before the business year including the appraisal base date) of the largest shareholder, largest investor, and stockholders or investors specially related to such largest shareholder (hereafter in this paragraph, the largest shareholder, etc.) shall be added to the value of stocks, etc. of the corporation that is appraised under the provisions of Article 14 (1) 11 and (2) of the Corporate Tax Act, but where the largest shareholder, etc. holds in excess of 50/100 of the total number of stocks issued by the relevant corporation, 30/100 (15/100 in cases of small and medium

(f) In addition, after the 8th 7th 7th eth 7th eth 7th eth eth eth eth eth 8th eth eth eth eth eth 1st eth eth eth eth eth 1st eth eth eth eth eth eth eth eth 1st eth eth eth eth eth eth e. e. e. e. e. e. 1st e. e. e. e. 1st e. e. e. 1st e. e. e. 1st e. e. 1st e. e. e. 1st e. e. e. 1st e. e. e. e. 1st e).

(i) To revise the following:

[Plaintiff asserts that the total amount of tax evaded in relation to dividends is KRW 26 million and this is extremely small, and thus, it is nothing more than a minor reduction of tax. However, the title trust of this case of I argues that the title trust of this case was conducted in a series of processes to transfer the shares of △△△, Jeju, and the shares of ○○, which are his children, at a very low face value or a free order to do so (in the case of partial transfer of shares, gift tax is paid, but most of the shares acquisition funds are deemed omitted). The mere fact that there is a small amount of tax evaded in relation to dividends does not necessarily mean that a minor reduction of tax has occurred. Moreover, the above amount cannot be deemed as an insignificant amount of tax per se.)

(j)in addition to the following:

“(2) Determination on the assertion that the transfer of shares between the title trustee cannot be deemed a new title trust”

According to the change of shares and the content of the instant disposition, it is apparent that the instant disposition by Ll Defendants was a taxation disposition on each title trust conducted at the time of incorporation and the 1 and 2 capital increase with respect to each title trust, and it was not a taxation disposition on the transfer of shares from the title trustee to the title trustee. Therefore, this part of the allegation is without merit, without

(3) Determination on the donation value of capital increase with consideration

Unlike the increase of the number of shares, and the actual value of new shares at par value according to the dilution effect of the so-called capital increase, if the actual value of the previous shares falls short of the par value, the purchaser of the new shares at par value due to the dilution effect of the new shares shall be deemed to have actual property loss (over the contrary, the actual value of the previous shares) and if the actual value of the previous shares exceeds par value (in fact, the actual value of the previous shares is reduced). According to each of the above evidence and evidence Nos. 19, 2, and 3, each of the above evidence and evidence No. 19, No. 21, 21, and 3, the actual value of the new shares at the first and second capital increase is recognized to have been acquired at par value and the actual value of the new shares at the time of each of the new shares increase considerably above par value. Thus, the total value of the previous shares at the time of the new shares increase cannot be limited to the total value of the new shares at par value before and after the new shares increase.

Therefore, it is reasonable that the Defendant calculated the gift value of the shares allocated to the title trustee in the first and second capital increase with respect to the shares received by the title trustee, applying each of the provisions of Article 63(1)1(c) and (3) of the Inheritance Tax and Gift Tax Act, and Article 54 through 56 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, and calculated 130% of the net profit value for the first capital increase with respect to the second capital increase, and 3:2% of the average net asset value for the second capital increase with respect to the second capital increase. Therefore, the Plaintiffs’ assertion is not acceptable

2. Conclusion

Therefore, the plaintiffs' claims of this case are all dismissed due to the lack of reasons, and the judgment of the court of first instance is just in its conclusion, and all appeals of the plaintiffs are dismissed. It is so decided as per Disposition.