National High Court Decision 2007J 2363 ( October 18, 2008)

deemed donation of stock title trust;

Inasmuch as there is no evidence to prove that the title trust had a clear purpose of tax avoidance to the extent that the title trust had no objective of tax avoidance, the Plaintiff’s assertion is rejected.

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

Man Doz 300

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of gift tax of KRW 336,00,000 against the Plaintiff on March 14, 2007 is revoked.

쇠지지鹬 u3000

1. Details of the disposition;

A. On May 9, 2002, the Plaintiff acquired 200,000 shares issued by a company specializing in the management of △△△△△△△△△△ (hereinafter “△△△△△△△△”).

B. On March 14, 2007, the Defendant deemed that the Plaintiff received a title trust on the basis of the said shares 200,000 shares (hereinafter “the shares in this case”) from KimA, and applied Article 41-2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003; hereinafter “Inheritance and Gift Tax Act”), and imposed gift tax of KRW 336 million on the Plaintiff (hereinafter “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 7, the purport of the whole pleadings

2. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful since the actual owner who lent KRW 1 billion from KimA to purchase the shares of this case and the above shares are not nominal trust from KimA, and even if the family title trust is recognized, the purpose of tax avoidance was not the KimA or the plaintiff, so the disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) According to Article 41-2(1) of the Inheritance and Gift Tax Act, where the actual owner and the nominal owner are different from the nominal owner in the property that requires a transfer or exercise of the right, the value of the property shall be deemed to have been donated to the actual owner by the nominal owner on the day when the actual owner was registered, etc. as the nominal owner (where the property requires a transfer of ownership, referring to the day following the end of the year following the year in which the date on which the date of acquisition of the ownership belongs), and thus, gift tax shall be imposed on the nominal owner. The following circumstances, which are recognized by the evidence No. 3, No. 5, No. 8,9, 10, 11 (including the virtual number). In other words, KimA paid the subscription price for the stocks of DDD Co., Ltd. owned by the principal as a loan from the financial company as a security. ② The stocks of this case were transferred to GGGGGGGGGGGGGGGGGGG company on September 18, 200202.

(2) The legislative intent of Article 41-2(1) of the Inheritance and Gift Tax Act is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance by using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, only if the purpose of title trust is not included in the purpose of tax avoidance, the application of subparagraph 1 of the same paragraph is possible, and in this case, the burden of proving that there was no purpose of tax avoidance is the person who asserts it (see, e.g., Supreme Court Decision 2003Du13649, Dec. 23, 2004; 2004Du1223, Jan. 28, 2005).

Therefore, the fact that there was no purpose of tax avoidance can be proved by the method of proving that there was another purpose, other than the purpose of tax avoidance. However, as the nominal owner who bears the burden of proof, there was a clear objective of tax avoidance to the extent that there was no objective of tax avoidance in the title trust, and the fact that there was no tax avoidance in the future at the time of the title trust or in the future, the ordinary person should be proved to the extent that there was no doubt (see Supreme Court Decision 2004Du11220, Sept. 22, 2006). Thus, the plaintiff's assertion is not acceptable, since there is no evidence to prove that there was a clear purpose, which is not related to the tax avoidance, to the extent that there was no objective of tax avoidance in the title trust in the instant case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.