Seocho 2013west 2757 (Law No. 23, 2013)

No issue shares may be deemed as return to title trust.

The facts acknowledged earlier alone are insufficient to readily conclude that the instant shares were in title trust upon the Plaintiff but terminated, and thus, it cannot be deemed that the title trust was returned to the Plaintiff.

Article 88 (Definition of Transfer) of Income Tax Act

2013Gu 1935 Dodan1935

EAA

Head of Sungbuk Tax Office

November 1, 2013

January 17, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On April 4, 2013, the Defendant rendered a disposition of imposition of OOO(including additional OOOO) of capital gains tax against the Plaintiff on April 4, 2013 and rendered a disposition of rejection against the Plaintiff on May 6, 2013.

1. Details of the disposition;

“A. On December 30, 2010, the Plaintiff transferred 20,000 shares of Nonparty BB (hereinafter “BB”) to KimCC, a deceptive party, the Plaintiff reported and paid KRW OOO of capital gains tax after transferring 20,000 shares of Nonparty BB (hereinafter “instant shares”) to OOO per share,” and (b) the Daegu Director of the Regional Tax Office deemed that the Plaintiff transferred the instant shares to KimCC, a related party, at a low price, the Plaintiff assessed the market price of the instant shares as an OOO per share as a supplementary assessment method under the Inheritance Tax and Gift Tax Act, and notified the Defendant of the assessment data. On April 8, 2013, the Defendant issued the instant disposition of imposition that corrected OOO of capital gains tax for the year 2010, and notified the Plaintiff of the disposition of imposition.

C. On April 30, 2013, the Plaintiff filed an application for rectification of capital gains tax paid after a voluntary declaration stating that “the instant shares were returned to the Defendant, which was held in title by KimCC, and was transferred only in the form, and not in substance transferred.” However, on May 9, 2013, the Defendant rejected the instant request for rectification.” (d) On May 27, 2013, the Plaintiff filed an administrative appeal with the Tax Tribunal regarding the instant disposition of imposition and the instant request for rectification, but was dismissed on July 23, 2013.

The purport of the whole pleadings as to facts without any dispute, Gap 11, 12, 13, and Eul 1)

2. Summary of the plaintiff's assertion

A. On August 3, 1992, KimCC established BB along with ParkD, Red EE, etc., and tried to acquire the instant shares by investing OOO in the capital as promoters. At that time, KimCC was a foreigner with the U.S. nationality. At that time, in the case of foreigners under the laws and regulations, it was possible to acquire the shares of a domestic corporation only for domestic investments by foreign currency outside inheritance and legacy. Therefore, it was impossible to acquire the shares in the name of KimCC.

B. In addition, KimCC could not participate in the establishment of BB, which is the same type of business as FF, at the time of making the above investment.

C. The KimCC disposed of the OO-dong 569 m2, 104.5 m2, and 323.8 m2 on its ground, which was inherited on OO-si, 1991, and prepared an OO-O-O-O-O-O-O-O-O-dong 569 m2,00 m23.8 m20 years from the time of the acquisition of the instant shares, but there was no financial data for 20 years. On the other hand, the Plaintiff did not have any economic ability to cover the stock price equivalent to the O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

D. As the Plaintiff paid the purchase price of the instant stocks, KimCC wired the total amount of KRW OOO on January 4, 201 and KRW OOOO on January 5, 201, and immediately returned to the head of KimCC’s passbook, and cannot be deemed that the transfer of the instant stocks was made for a fee.

E. Comprehensively taking account of the above facts, the instant shares were returned to the Plaintiff by KimCC that the title trust was held by KimCC, and its substance cannot be deemed as transfer, and thus, the instant disposition and the disposition rejecting a request for correction was unlawful.

3. Whether the disposition is lawful;

A. Article 14(1) of the Framework Act on National Taxes provides that if the ownership of the income, profit, property, act, or transaction subject to taxation is merely nominal and there is a separate person to whom such income, profit, or transaction belongs, the person to whom such income, profit, property, act, or transaction belongs shall be liable for tax payment and the tax law shall apply to such person. The plaintiff claiming the application of this provision bears the burden of proving that the transfer of the stock transaction

B. Pursuant to each of the statements in Gak, A1 through 5, and Nos. 8 (including branch numbers), when the Plaintiff acquired the instant shares, KimCC, who had been in FF at the time of the Plaintiff’s acquisition of the instant shares, was the vice president of BB after the Plaintiff retired from FF. The restoration of Korean nationality on April 6, 1993; KimCC sold OO-Gu OO-dong 569, 104.5 square meters and its ground area on 323.8 square meters on 4, 2011; KimCC remitted OOOOOO on January 5, 201, the Plaintiff transferred to the Plaintiff on 191, to the head of KimCC, and the fact that the Plaintiff transferred OOOOOO on 5, 2011 to the head of the Tong-gu at the time of the instant shares to the Plaintiff, but it was difficult to recognize that each of the instant shares was subject to the imposition of the gift tax again after the Plaintiff’s cancellation of the title trust.

4. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.