Cho Jae-2012-Mining-1441 ( December 28, 2012)

No deemed donation of title trust shall apply to fraudulent name theft.

The change in the name of the shares of this case was made by the unilateral fraudulent name theft regardless of the intent of the plaintiffs, so it is not applicable to the constructive gift of

Article 45-2 of the Inheritance Tax and Gift Tax Act as Donation of Title Trust)

2013 Gohap2960 Revocation of a disposition, etc. on imposition of gift tax

AA and five others

O Head of the tax office and two others

April 2, 2014

May 21, 2014

1. 20O.O.O.O. (20O.) by the head of the defendant's office of OO.O. (20O.) against the plaintiff AA and the joint and several tax payment notification of the above gift tax, and the defendant's office of OO.O. (200O.O.) imposed upon the plaintiff CCC on the 20O, and the joint and several tax notification of the above gift tax for the 20OO and the joint and several tax payment notification of the gift tax for the 20OO and the 20O.O.O. (2000 for the 20OE and the joint and several tax notification of the above gift tax for the 20OF are revoked.

2. The costs of lawsuit are assessed against the Defendants.

As set forth in the text.

1. Details of the disposition;

A. Status, etc. of the parties

1) GGG Co., Ltd. (hereinafter referred to as “non-party company”) is the unlisted company established for the purpose of 20O.O.O. Human Fisheries and Changho Construction Business.

2) The total number of outstanding shares of the non-party company 20O.O.O.O. shall be 200,000 shares (on face value 5,000 shares) and the composition of shareholders and executive officers holding that amount was as follows.

3) HH, who worked as the head of the planning office of the non-party company, has been actually managed by the non-party company since 200O, on behalf of the father, the non-party company. The plaintiff AA is an employee working for the non-party company from 200O.O.O.O. to 20O.O.O.O.O.O., and 20O.O.O.O.O., to 200O.O.O.O.O., the plaintiff CCC, from 200O.O.O.O., to 20O.O.O.O.O., and the plaintiff EE from 200O.O.O. to 20O.O.O.O.O., to 20O.O.O.O.O.,

B. Change of shareholders of the non-party company and imposition of gift tax on the plaintiffs

1) Plaintiff BB made 30,00 shares owned by the said Plaintiff CBA, 30,00 shares owned by the said Plaintiff CBA, 30,00 shares owned by the Plaintiff FF to the Plaintiff EE, 20,00 shares transferred at par value to the Plaintiff EE, and each of the shareholders change report, securities transaction tax payment, transfer income tax return, etc. was made (hereinafter collectively referred to as “each of the shares in this case”; 200, 200, 200, 30,000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000.

1) The plaintiffs asserted that each of the first dispositions of this case against the non-party company should be revoked inasmuch as they are forged documents prepared and submitted voluntarily by the non-party company to the effect that the tax judgment on each of the first dispositions of this case is requested, and that the name of each of the shares of this case is unilaterally changed in the non-party company without the plaintiffs' consent or agreement, and that each of the confirmations in the name of plaintiff BB, DD, and FF should be revoked.

"2) The Tax Tribunal, upon the plaintiffs' above appeal, examined whether the non-party company's shares were nominally held by the plaintiff AA, CCC, and EE based on the identity theft, and decided that the tax base and tax amount should be corrected according to the result of the review of whether the non-party company's shares were nominally held by the plaintiff AA, CCC, and FF (i.e., 1540 out of 2012 Gwangju 1441, 2012, 1710 out of 2012, 2012)."

"On the other hand, the non-party company received a request for a trial (the first instance court 201No. 2263) from the Tax Tribunal with respect to the disposition of corporate tax and additional tax in accordance with the above corporate integration investigation, and accordingly reduced the net asset value per non-listed stock of the non-party company. Accordingly, the Defendants calculated the value per share of the non-party company's non-listed stocks as gift among the plaintiffs as OO.O.O.O.O., by assessing the value per share of the non-party company's stocks as gift as O.O., the Defendants revised the above amount of gift tax for the plaintiff BB, and the AA as OB, the plaintiff DD, and the CCC as O.O., and revised the above amount of gift tax for the plaintiff FF, EE as O.O., the above amount of gift tax for the non-party company's above disposition(the above reduced amount of tax on the first date of the first disposition) / each of the plaintiffs' arguments, defense No. 1 through 312, defense and evidence No. 12, each of the plaintiffs.

1) The decision of the Tax Tribunal is bound by the tax authority. Despite the decision of the Tax Tribunal on the re-examination, it is unlawful that the Defendants asserts that the initial disposition is valid without taking any measures such as substantial re-examination of whether the change of the name of the instant shares was caused by the fraudulent name theft, and subsequent correction or re-disposition. Therefore, each of the above dispositions should be revoked in the sense that each of the instant dispositions is declared invalid and invalid.

2) The change of ownership of each of the instant shares was made by HH to make a processed stock transaction by stealing the Plaintiffs’ names, and thus does not constitute title trust, and each of the instant dispositions against which gift tax was imposed by deeming HH as a gift is unlawful.

3) Even if the change of title constitutes a title trust, each of the dispositions in this case is unlawful, since there was no purpose of evading tax against the Plaintiffs, and each of the dispositions in this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The review decision of the Tax Tribunal, such as the substantial reinvestigation and the validity of each of the dispositions in this case, is a unique type of decision, which requires the agency to re-examine specific matters. In most cases, the assessment base and tax amount are determined based on the results of re-audit. In other words, the criteria or scope for re-audit are presented, and the details of the subsequent disposition are reserved entirely to the agency that made the disposition. The binding force of the review decision is limited to the recognition and judgment of the facts constituting the text of the review decision and the requisite facts constituting the premise thereof, i.e., the determination of the disposition. As such, the agency has only a legal obligation to conduct re-audit in accordance with the criteria or scope of the review decision, and it cannot be deemed that the agency notifies the agency that it maintains the initial disposition even after re-audit in accordance with the purport of the re-audit, or that it is contrary

As to the case, as to the plaintiff's appeal on each of the first dispositions of this case

As seen earlier, the fact that the Tax Tribunal re-examines whether the title trust was held under the name of 20O.O.O.O.O.O.O., and determines that the tax base and tax amount should be corrected according to the results of the re-examination. Thus, the Defendants have the legal obligation to re-examine whether the change in the names of each of the instant types of shares was made between the Plaintiffs in accordance with the purport of the re-audit decision. However, it is insufficient to recognize that the materials and the position of the Defendants were re-established, and there is no other evidence to acknowledge that there was a re-audit in accordance with the aforementioned purport after the decision of the Tax Tribunal, and there is no other evidence to acknowledge that there was a re-audit in accordance with the above purport (the Defendants were not subject to re-audit decision of 20O.O.O.O.O.O.O., the first disposition imposed on the Plaintiffs, and thus, it is reasonable to view that the Defendants were not subject to any de facto change in the net asset value of Non-Party 1's own stocks and its position.

2) The provision on deemed donation under Article 45-2(1) of the Inheritance Tax and Gift Tax Act as to whether a change in title constitutes a title trust applies to a property, the transfer or exercise of the right of which requires registration, etc., and where the actual owner and the nominal owner have made registration, etc. in the future of the nominal owner by agreement or communication. Therefore, where a registration, etc. is made by unilaterally using the nominal owner’s name in relation to the intent of the nominal owner without regard to the nominal owner’s consent, such provision may not apply (see, e.g

In full view of the following circumstances as a whole, it is reasonable to view that the change of name of each of the instant shares made from Plaintiffs BB, DD, FF to Plaintiff AA,CCC, and EE was made through the unilateral act of HH’s identity theft, regardless of the intent of the Plaintiffs, the nominal owner, and thus, it cannot be deemed that the change was made through the title trust, and thus, it cannot be deemed as a donation under the Inheritance Tax and Gift Tax Act.

(1) Since HH, which actually has been operating the non-party company, obtained permission for the 20O.O.O.O.O. and performed the OO.O. O. O.O., a large scale of net profit was anticipated, it appears that HH planned the change of the name of each of the instant shares to be attributed to himself/herself in the form of dividends against the disguised shareholder.

(2) In light of the fact that Plaintiff AA, CCC, and EE had no special exchange or friendly relationship with the rest of the Plaintiffs, who are employees working for the non-party company, and in particular, Plaintiff AA, and EE had already retired from the company at the time of Plaintiff AA, CCC, and EEO, it is difficult to deem that Plaintiff AA, CCC, and EE agreed in advance with the rest of the Plaintiffs on the title trust of each of the instant shares or consented to the title trust with their own will.

(3) The plaintiff BB, DD, and FF were notified of each of the first dispositions of this case, and claimed that the non-party company and the plaintiff AA, CCC, and EE were each of the shares of this case under a stock sales contract with the defendant, and that the shareholders' rights to each of the above shares whose name was changed was confirmed to each of them under the original name, and that the shareholders' rights to the above shares were cancelled for the plaintiff AA, CCC, and EE, and that the plaintiff BB, DD, and F were awarded a favorable judgment of the 200O.O.O.O.O. (O. district court 20O.O.O.).

(4) Although Plaintiff BB, DD, and FF were subject to a disposition of rejection by the prosecution due to the complainant’s refusal to attend, Plaintiff BB, DD, and F were 20O.O.O., each of the stock transaction agreements used for the change of the name of each of the instant shares was forged by HH, and the criminal complaint was filed against HH on suspicion of forging private documents, etc., and thereafter Plaintiff DD was 20O.O.O.O.O., HH., transferred the right to claim the refund of the deposit for the lease deposit of OO members from HH, and drafted a written agreement that additionally receives KRW O in cash for mental compensation.

(5) At around 200O.O.O.O., Plaintiff AA, CCC, and EE also filed a criminal complaint with HH on charges of forging private documents. Following the investigation, HH: (a) Plaintiff DD purchased and sold 30,000 shares of the non-party company to Plaintiff CCC; (b) Plaintiff BB forged a sales contract with the content that the purchase and sale of 50,000 shares of the non-party company to the non-party company to the non-party company to the non-party company to the non-party company to the non-party company to the non-party company to the non-party company to the non-party company to the 200O.O.O.; (c) after the tax investigation commenced, Plaintiff CCC, AAA’s shares under the name of the non-party company, and the non-indicted 2O under the summary order issued by the non-party company to the non-party company to the non-party company to the non-party company; and (d) the non-indicted 200 and the above shares were forged 20.

(6) Around 200O.O.O., during the tax investigation, HH submitted to the OO regional tax office a written confirmation of the name change of each of the instant types of shares to the Plaintiff BB, DDD, and FF each of the instant types of shares, including the fact that the title trust is recognized. While the OO regional tax office acknowledged the title trust of each of the instant shares based on the above written confirmation, the body of the part (name, signature, and resident registration number) of the confirmation of each of the instant shares was written by the same person, and the staff JJ, who works for the non-party company, was arbitrarily prepared without the consent of the nominal owner under the direction of HH. The Plaintiff EE filed a criminal complaint with the 200O.O.O.J., and as a result of the investigation, J submitted the above written confirmation under the name of FF on or around 200O.O.O. and submitted it to the O regional tax office and exercised it to the 200O.

Therefore, this part of the plaintiffs' assertion is justified.

3. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition by admitting it.