2013west 2481 (Law No. 13, 2014)

The provisions concerning the constructive donation for title trust may not apply where registration, etc. is unilaterally made under the name of the nominal owner irrespective of the intent of the nominal owner.

A criminal judgment recognizing the use of forged stock acquisition agreement becomes final and conclusive, and it is recognized that the investigation agency unilaterally used the name of the plaintiffs regardless of the plaintiffs' intent in light of the fact that the related persons have consistently stated.

Donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2014Guhap67024 Action Demanding revocation of the imposition of gift tax

1. KimA

2. KimB

3. KimCC;

4. Hebane ○○.

1. The head of Dongjak-gu Tax Office;

2. A diving director; and

3. The director of Samsung Tax Office.

4. The director of the tax office for male-sea.

August 28, 2015

October 7, 2015

1. (a) On September 6, 2013, the head of Dongjak District Tax Office (including additional taxes), KRW 16,761,230 (including additional taxes), KRW 13,743,38 (including additional taxes), KRW 486,574,742 (including additional taxes), and KRW 357,82,440 (including additional taxes) of gift tax for the year 2005, which reverts to Plaintiff KimA;

B. The gift tax amount of KRW 12,748,840 (including additional taxes) on September 9, 2013 by the director of the sericultural Tax Office against Plaintiff KimB on September 9, 2013;

C. On February 4, 2013, the head of Samsung Tax Office imposed a gift tax of KRW 16,055,340 on Plaintiff KimCC in 2006 (including additional taxes)

Each disposition shall be revoked.

2. The plaintiff Hu○○'s claim is dismissed.

3. Of the costs of lawsuit, the part arising between Plaintiff KimA, KimB, KimCC, and Defendant Dongjak-gu, the head of the sericultural Tax Office, and Samsung Head of the Samsung District Tax Office shall be borne by the Defendants, and the part arising between Plaintiff He○ and the head of the Namyang Tax Office shall be borne by Plaintiff Hu○○

Cheong-gu Office

The disposition of imposition of gift tax of KRW 387,79,670 (including additional tax) on February 4, 2013 by the head of the Namyang District Tax Office and the head of the defendant Namyang District Tax Office on February 4, 2013 and the disposition of imposition of KRW 211,109,980 (including additional tax) on the gift tax of KRW 2009.

1. Details of the disposition;

A. Status of the plaintiffs

1) On December 29, 1992, ○ ○ ○ Architect Incorporated Co., Ltd. (hereinafter referred to as “instant company”) was established with the trade name of “○ ○ ○ ○ Architect Incorporated Incorporated Company”, which was changed to the current trade name on December 23, 2009, and is engaged in construction civil engineering, electrical engineering, electrical equipment, fire-fighting systems, and design, supervision, etc. of construction.

2) Around May 2006, Plaintiff KimA joined the instant company as a director, etc., and retired from the office on July 201. Plaintiff KimB, who was employed on March 2006 in charge of design management and retired from the office until July 2009. Plaintiff KimCC entered around December 1992 and worked as a director from March 1998 to July 2009 (from June 2005 to June 2009, the representative director was employed from July 2009 to the representative director, and Plaintiff KimB retired from office on December 201 after having worked as the representative director from July 2009 to April 201.

B. Details of changes in stock ownership of the instant company

1) From the time of the establishment of the instant company, KimD actually owns all 62,000 shares issued by the instant company. The name of the instant company’s shares was changed in the name of its executives and employees, including the Plaintiffs, and the details of the change are as follows: (a) the details of the change are as follows: (b) the changes in the ownership of the instant company

2) Plaintiff KimA and KimB are children of KimD, and Plaintiff KimCC is a kyl of KimD.

(c) Initial imposition of gift tax;

Of the acquisition of shares of the company of this case, the head of Dongjak Tax Office shall judge on December 31, 2005, May 11, 2006, August 21, 2009, April 11, 2010, that the plaintiff KimB transferred the shares of this case, and that the transfer of shares of this case shall be reverted to the plaintiff KimB on May 11, 2006, the transferee of the plaintiff SamsungB on May 11, 2006, the head of Namyang Tax Office on May 11, 2006, the defendant Yangyang Tax Office on July 1, 2009, the transferee of the plaintiff ○○○○ on August 21, 2009, the transfer of shares of this case on August 21, 200, and the transfer of shares of this case on August 21, 200, the transfer of shares of this case shall be reverted to 2010, the transfer of shares of this case (hereinafter collectively referred to as the "transfer of shares of this case").

No.

Agency

Year

Noticed Tax Amount

(including additional tax, unit: Won

1

head of Dongjak-gu Tax Office

KimA

205

16,390,610

2

206

13,003,680

3

209

40,077,950

4

2010

357,499,480

5

The Director of the Pacific District Office

KimB

206

6,422,130

6

Samsung Head of Samsung Tax Office

CC Kim

206

16,055,340

7

Head of Namyang District Tax Office

Hu○ ○

209

387,794,670

8

209

211,109,980

(d) Procedures of the previous trial; and

The plaintiffs appealed against the above disposition and filed an appeal with the Tax Tribunal, but the claims were dismissed on June 13, 2014.

(e) Transfer of taxation authority;

On the other hand, the right to impose tax on plaintiffs KimB was newly established in May 2013, and the right to impose tax on plaintiff KimB was transferred from the head of the Songpa District Tax Office to the defendant.

(f) A disposition of increase or correction;

On September 6, 2013, the head of Dongjak Tax Office: (a) on September 6, 2013, the Plaintiff KimA; and (b) on September 9, 2013, the head of the sericultural Tax Office deemed the Plaintiff KimB to have been donated the shares of the Plaintiff KimB, the said Plaintiffs, other than the shares of the instant company, are also deemed to have been donated; (c) impose new gift tax regarding the constructive donation of shares of △△△ Construction Co., Ltd.; and (d) at the same time, the said new gift tax base and calculated the amount of gift tax by adding up the value of donated property related to the instant imposition of △△ Construction to the value of donated property related to the instant first disposition; and accordingly, (c) issued a revised disposition to increase the tax base and calculated amount of gift tax (hereinafter

(g) Procedures for the previous trial;

Plaintiff KimA and KimB filed an appeal with the Tax Tribunal on October 14, 2014 after dissatisfied with the instant disposition of increase and objection. On December 18, 2014, the Tax Tribunal rendered a decision to re-examine and correct the time of transfer on the ground that the Defendant head of Dongjak Tax Office and the Defendant Pail Tax Office were erroneous in ascertaining that some transfer time was changed.

(h) Disposition for reduction or correction;

Accordingly, around March 2015, the defendant head of Dongjak District Tax Office and the head of sericultural Tax Office re-examineed the time of entry of change of holders in accordance with the purport of the above decision and corrected the amount of gift tax on the plaintiffs. As a result, some of the corrective disposition of this case was reduced or corrected (hereinafter "the corrective disposition of this case").

(g) Object of the lawsuit and final tax amount;

The first disposition of this case against the plaintiff KimA and KimB, the corrective disposition of this case, the corrective disposition of this case, the corrective disposition of the reduction of this case, the corrective disposition of this case, and the final tax remaining after the corrective disposition of this case, shall be as follows:

In relation to the plaintiff KimA and KimB, "the instant disposition" is referred to as "the instant disposition", and "the first disposition" is referred to as "the instant disposition in relation to the plaintiff KimCC and Hu○○."

No.

(Disposition Office)

(Tax Payment)

(Person) the obligor;

Reversion

Year

First Disposition of this case

Disposition of Increase Adjustment of the instant case

The Disposition of Reduction and Correction in this case

Final Tax Amount

(including additional tax)

Date of Disposition

Imposition

Notice Tax Amount

(including additional tax)

Disposition

Data

(A) Identification Card

Date of Disposition

Imposition

Notice Tax Amount

(including additional tax)

Disposition

Data

(A) Identification Card

Details

Disposition

Data

(A) Identification Card

1

Action

The head of a tax office

KimA

205

February 4, 2013

16,390,610 won

1-1

September 6, 2013

370,620 won

16-1

No change in tax amount shall be made

17-1

16,761,230 won

2

206

13,003,680 won

1-2

1,250,570 won

16-2

510,912 won

Reduction and Correction

17-2

13,743,338 won

3

209

40,077,950 won

1-3

47,331,150 won

16-3

834,358 won

Reduction and Correction

17-3

486,574,742 won

4

2010

357,499,480 won

1-4

382,960 won

16-4

No change in tax amount shall be made

17-4

357,882,440 won

5

Dives rooms

The head of a tax office

KimB

206

6,422,130 won

2

9, 2013

6,326,710 won

16-5

No change in tax amount shall be made

17-5

12,748,840 won

[Ground of Recognition] Facts without dispute, Gap evidence 1-1 through 4, Gap evidence 2, 3, Eul evidence 4-1, 2, Gap evidence 5, 6-1 through 8, Gap evidence 12-1, 2, Gap evidence 14, Gap evidence 16-1 through 5, Gap evidence 17-1 through 5, Gap evidence 18-1, 2, Eul evidence 1-4, Eul evidence 2, 2, Eul evidence 4-1, 4-2, Eul evidence 4-1, and 2-2, and the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The instant agreement on the acquisition of shares was forged by KimD and its employees regardless of the intent of the Plaintiffs, and the transfer of shares was made as if shares were acquired under such forged agreement. The Plaintiffs were unaware of the instant acquisition of shares and transfer of shares. Accordingly, the Plaintiffs do not constitute the subject of gift tax under Article 45-2 of the former Inheritance Tax and Gift Tax Act.

2) The transfer of this case was made for other purposes unrelated to tax avoidance, and in fact there was no tax evasion due to the transfer of this case.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to whether there was an agreement on title trust

A) The provision on deemed donation under Article 45-2(1) of the Inheritance Tax and Gift Tax Act shall apply in cases where the actual owner and the nominal owner enter into an agreement or communication and make registration, etc. in the name of the nominal owner in the future, regardless of the intent of the nominal owner. In such a case, where the tax authority unilaterally proves that the actual owner is different from the nominal owner, the provision on deemed donation under Article 45-2(1) of the Inheritance Tax and Gift Tax Act shall not apply in cases where the actual owner and the nominal owner enter into an unilateral act of the actual owner regardless of the intent of the nominal owner (Supreme Court Decision 2007Du15780 Decided February 14, 2008).

B) Determination on Plaintiffs KimA, KimB, and KimCC

In light of the following facts and circumstances in light of the above legal principles, it is recognized that KimD unilaterally used the above plaintiffs' names regardless of the intent of the plaintiffs KimA, KimB, and KimCC, and formed a share acquisition agreement and changed the title accordingly.

(1) The confirmation of a criminal judgment related to the plaintiff KimA

According to the evidence evidence evidence Nos. 10 and 11, the Seoul Central District Court found that KimD arbitrarily, while operating the company of this case from January 17, 2014 to December 22, 2006, arbitrarily listed the company's officers, employees, or relatives as shareholders and exercised the share acquisition contract by forging the share acquisition contract. The Seoul Central District Court rendered a guilty judgment on August 21, 2009 and April 1, 2010 that KimD used the share acquisition contract with the plaintiff KimA as the transferee; the above criminal judgment was made after the examination of evidence as to the result of the tax investigation conducted by the plaintiff KimA, and the above final judgment is recognized.

(2) Statements, etc. of relevant persons

In addition to the purport of Gap evidence Nos. 5, Gap evidence Nos. 19 through 26, Eul evidence Nos. 12, 13, and 16, and the testimony of KimE, Kim Jong-soo, 1) In the process of police investigation and prosecutor's investigation, Kim Jong-D had red ○○ or KimE, an employee of the company of this case, enter the plaintiffs and other employees' names in the contract, affix the plaintiffs' seals or seals which were stored in the company of this case, and then made them enter the transfer of ownership based on this contract, and made them enter the transfer of ownership based on this document, and made tax reports such as capital gains tax, etc. to the effect that ○○○○○○○○○○○○ and this court made a consistent statement at the prosecutor's office and this court, and made a consistent statement to the effect that ○○○○○○○'s above statement was not notified to the title holder of capital gains tax, securities transaction tax, etc. in advance, and that ○○○○'s transfer of shares was also made.

(3) Determination as to the evidence No. 9

According to the statement in Eul evidence No. 9, when KimD made a statement at the Seoul Regional Tax Office on February 15, 2012, in relation to the transfer of shares by the plaintiff KimA on December 31, 2005, the transfer of shares to the plaintiff KimA was made in the name of "child KimA", "in relation to the transfer of shares by the plaintiff KimA and KimB on May 11, 2006, the transfer of shares was not made in the name of the child. It was not a donation that only the change of the ownership was made in the name of the child. The change was made in the name of the plaintiff 201 in relation to the transfer of shares, not in the name of the plaintiff 201 in relation to the transfer of shares." The change was made in relation to the transfer of shares by the plaintiff ○○ on July 1, 2009 and August 21, 2009 to the plaintiff 201.

However, if Gap evidence Nos. 27 and Eul evidence Nos. 5 added the purport of the entire pleadings, the tax authority has not conducted supplementary investigations, such as gathering statements from plaintiffs KimA, KimB, and KimCC about the acquisition of the shares of this case after receiving the statement from KimD as stated in Eul evidence No. 9, and the fact that the plaintiff KimA has filed a petition with the police about the acquisition of the shares of this case and stated to that effect that its name was stolen, and the fact that the plaintiff KimA has stated to the police in this case is recognized.

(4) Determination as to Gap evidence 8-1

(A) As pointed out by the Defendant, the Plaintiff KimA submitted to this court a letter of confirmation as Gap evidence 8-1, and the Plaintiff KimDD president, his father at the time of entry, was aware that he transferred the shares in the future, and that there was some shares. At that time, the shares are known to have been offered by his father at the time of donation for the Company. On the other hand, he was unaware that the shares in his name were re-transfered, taken over, or acquired additional shares, and that he was first aware of the mail sent by the Seoul Regional Tax Office on March 30, 2012. The documents on the stock transaction were not presented by the principal on one occasion, but there was no personal seal and some documents kept in the management department. Moreover, it is true that there was no statement that the agreement on the transfer or acquisition of shares was made in accordance with the transfer or acquisition of shares.

(B) However, in light of the fact that Plaintiff Kim Jong-A, who was enrolled in the aftermath of the early 2009, went to the Hong○○○ who was suffering from the disease, and then, Plaintiff Kim Jong-A had to put in place in place a confluences with regard to the change of holders at the time of entry by Plaintiff Kim Jong-A from Red○○, and was aware of the specific contents, but it was known of the results of the tax investigation at the Seoul regional tax office around March 2012 and became known of the change of holders of this case. The above written confirmation also argued that the expression of the above written confirmation was to be stated in such purport, as alleged by the Defendant, it seems insufficient to interpret that “the Plaintiff KimA was employed at the time of understanding the contents of the transfer of stocks” as alleged by the Defendant.

C) Determination on Plaintiff Hu○○○

(1) Unless special circumstances exist, such as that if a tax authority received a written confirmation from a taxpayer as a person liable to pay tax in the course of conducting a tax investigation, it is difficult to readily deny the evidence of the written confirmation, barring any such circumstance as where the written confirmation was forced against the intent of the originator, or it is difficult to be deemed as a material to prove specific facts due to insufficient details (see Supreme Court Decision 2001Du2560, Dec. 6, 2002).

(2) If the purport of the entire argument is added to the statement in Eul evidence No. 10, it is recognized that the plaintiff Hu○○ stated in the Seoul Regional Tax Office on January 31, 2012 that he acquired 12,400 shares of the company of this case from Kim○○ on or around June 1, 2009, not from the actual acquisition transaction, but from the actual transfer transaction, he was registered as a shareholder, and he submitted all documents because he needs to hold shares when he is registered as a representative director, and he only lent his name to Kim○○○, as the representative director, with the consent to register as a shareholder of the company of this case, and the fact that the plaintiff Hu○○○ did not file a complaint against Kim○○. Considering these facts, even if the circumstances of the above other plaintiffs are considered in favor of the plaintiff Hu○○○○, it is reasonable to recognize that the plaintiff ○○○ and the transferee of this case comprehensively delegated the transfer of shares to the plaintiff ○○○○ by misappropriation's illegal use of the plaintiff Do.

D) Sub-determination

Ultimately, it is recognized that there was no agreement on a title trust agreement between Plaintiff KimA, KimB, KimCC, and KimD, while Plaintiff Hu○○ and KimD had reached an agreement on a title trust agreement between Plaintiff Hu○ and KimD. Accordingly, it is further determined whether there was an intention of tax avoidance in relation to the title trust of Plaintiff Hu○○○.

2) Whether there was an objective of tax avoidance in the instant share acquisition scheme and transfer of ownership, which made the Plaintiff Do○ as the transferee

A) Plaintiff Do○○ made an investment in a listed company, “△△△ Construction,” but failed to cause a serious liquidity crisis, and the decision on the commencement of rehabilitation procedures was made. KimD had several cases where the Plaintiff offered joint and several sureties for the obligation of △△ Construction as the actual owner and the representative director of △△ Construction, and the amount was reasonable. The decision on commencement of rehabilitation procedures for △△ Construction is likely to cause the creditors of △△△ Construction to attempt to enforce the enforcement of the instant company’s stocks owned by Do○○ on July 1, 2009. On July 1, 2009, Plaintiff Do○○ entrusted 9,300 shares to Plaintiff Do○○○○, and on July 1, 2009, Kim 3,100 shares, which was in the name of Plaintiff CC, in the name of the representative director and retired from office, were transferred to Plaintiff ○○○, a new representative director of the instant company.

B) The legislative purport of Article 45-2(1) of the Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle in the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, if the title trust was recognized to have been conducted for any reason other than the purpose of tax avoidance, and it is merely a minor reduction of tax incidental to the said title trust, it cannot be readily concluded that there was such a purpose of tax avoidance. However, in light of the legislative purport as seen above, only when the purpose of the title trust is not included in the purpose of tax avoidance, it cannot be determined as a deemed donation by applying the proviso of the said provision, and it cannot be said that there was an intention of tax avoidance. In addition, the burden of proving that there was no purpose of tax avoidance exists a person who asserts it (see, e.g., Supreme Court Decision 2013Du9779, Oct. 17, 2013).

Furthermore, as the nominal owner who bears the above burden of proof, there was an obvious objective irrelevant to the tax avoidance to the extent that it is deemed that there was no tax avoidance purpose in the title trust, and the fact that there was no tax avoidance at the time of the title trust or in the future is proved to the extent that the ordinary person is not doubtful, based on objective and conclusive evidence (see Supreme Court Decision 2004Du11220, Sept. 22, 2006). Whether there was such tax avoidance purpose or not should be determined at the time of the title trust of stocks at the time of the title trust, and it should not be determined as to whether there was any tax evasion thereafter (see Supreme Court Decision 2012Du546, Nov. 28, 2013).

C) Examining the following facts and circumstances in light of the aforementioned legal principles, it is insufficient to recognize that KimD held the title trust of the Plaintiff Hu○○○ on July 1, 2009 and August 21, 2009 with a clear intention not to evade tax, or that there was no tax to evade in the future at the time of the title trust or in the future, and there is no other evidence to acknowledge this otherwise.

(1) There is no evidence to objectively understand that there was a clear purpose of tax avoidance, such as the fact that KimD guaranteed the obligation of △△ building as an individual person, or that the creditors of △△ Construction could attempt to enforce the individual enforcement on the property of KimD, etc.

(2) There is no objective evidence that there was no tax evasion at the time of title trust or in the future. Rather, if the purport of the entire pleadings set forth in the evidence No. 19 through No. 23 is added, ① the accumulated earned surplus of the instant company until the business year 2010 is recognized, and ② the 21,700 shares of the instant company were registered in the name of KimD as of June 1, 2009, ③ the 62,000 shares of the instant company was the substantial right holder of the instant company, ④ the overall shares change in the ownership of the instant company ④ The 30% shares of the instant company did not constitute an oligopolistic shareholder with a special relationship of 20% as of July 1, 2009 and August 21, 2009 (amended by Presidential Decree No. 20150% as of August 21, 2009).

3) Sub-decisions

Ultimately, since the agreement on the title trust agreement between Plaintiff KimA, KimB, KimCC, and KimD is not recognized, the instant disposition against Plaintiff KimA, KimB, and KimCC premised on such agreement is unlawful since there is no legitimate ground for disposition. Accordingly, the instant disposition against Plaintiff Hu○○ and KimD recognized implied intent on the title trust agreement and the tax avoidance purpose due to the title trust is recognized, and thus, the instant disposition against Plaintiff Hu○○ is lawful.

3. Conclusion

The claims of plaintiffs KimA, KimB, and KimCC are accepted on the grounds of their reasoning, and the claims of plaintiffs Hu○○ are dismissed without any justifiable reason. It is so decided as per Disposition.