National High Court Decision 2007Du1034 (208.06.02)

Method of Application of Unlisted Stock Evaluation

At the time of the title trust of unlisted stocks, a third party sold 1,620 won per share to 45 persons while selling unlisted stocks. Two persons sold 30,000 won per share and 7,330 shares per share. In light of the number of trading partners and trading volume, it is reasonable to view 50,000 won per share as the market price.

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

Article 49 (Principles for Evaluation of Inheritance Tax and Gift Tax)

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The Defendant’s disposition of imposition of KRW 896,00,000 on August 1, 2006 against the Plaintiff was revoked (the foregoing date appears to be a clerical error on August 1, 2007).

1. Details of the disposition;

"가. 중부지방국세청장은 김○기가 실질적 사주인 주식회사 피○티코리아(이하이 사건 회사'라 한다)에 대한 주식변동조사를 실시하여, 2000년 중 이 사건 회사 발행주식 40,000주(이하이 사건 주식'이라 한다)에 대하여 원고 명의로 명의개서가 이루어진 사실을 확인하고, 이 사건 주식의 실 소유자인 김○기가 이를 원고에게 명의신탁하였고, 위 주식의 1주당 가액은 50,000원이라고 보고 피고에게 과세자료를 통보하였다.", "나. 피고는 2006. 8. 1. 원고에 대하여 김○기가 이 사건 회사의 자기주식을 실질적으로 소유하고 있다가 그 중 40,000주를 원고에게 명의신탁하였고, 주식의 1주당 가액은 65,000원(시가 50,000원에 최대주주의 주식에 ㅐ한 가산할증율인 100분의 30 가산) 이라는 이유로 상속세 및 증여세법(2002. 12. 18. 법률 제6780호로 개정되기 전의 것, 이하법'이라고 한다) 제41조의2 제1항을 적용하여 2000년 귀속 증여세 1,232,000,000원을 부과하였다.", "다. 원고는 2007. 2. 1. 조세심판원에 심판청구를 하였고, 조세심판원은 2008. 6. 5. 김○기가 명의신탁한 주식의 가액을 평가함에 있어서 100분의 30에 해당하는 가산할 증율은 적용되지 아니하므로 이 부분에 관한 심판청구는 인용하고, 나머지 심판청구는 기각한다는 결정을 하였으며, 피고는 조세심판원의 결정에 따라 896,000,000원으로 감액경정하였다(이하 2006. 8. 1.자 부과처분 중 감액되고 남은 부분을이 사건 부과처분'이라고 한다).",[인정근거] 다툼 없는 사실, 을 제1호증의 기재, 변론 전체의 취지

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Since the actual owner of the instant shares is the instant company, it cannot be said that the instant company had the purpose of tax avoidance because it did not actually exist to avoid or evade taxes through title trust.

(2) The market price of the instant shares was 50,000 won on the ground that the ○○ Real Estate acquired 62,040 shares of the instant company’s own shares again transferred KRW 8,220 shares of the instant shares to KRW 50,000 per share. However, in light of the fact that ○ Real Estate transferred KRW 7,330 shares of the instant shares to KRW 30,000 per share, the market price of the instant shares cannot be assessed to KRW 50,000 per share.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the purpose of tax avoidance exists

(A) The legislative purport of Article 41-2(1) of the Act is to recognize an exception to the principle of substantial taxation with the purport of effectively preventing the act of tax avoidance using the title trust system and realizing the tax justice. Thus, the application of the proviso of the same Article is possible only if the purpose of tax avoidance is not included in the purpose of the title trust, and in such a case, the burden of proving that there was no purpose of tax avoidance. Therefore, the burden of proving that there was no purpose of tax avoidance, other than the purpose of tax avoidance, can be proven by means of proving that there was no purpose of tax avoidance. However, the nominal owner, who bears the burden of proof, has obvious objective that is not superior to the tax avoidance in the title trust, and the fact that there was no purpose of tax avoidance at the time of the title trust or there was no tax avoidance at the time of the title trust, must be proven to the extent that there was no doubt in the ordinary person, based on objective and timely evidence (see, e.g., Supreme Court Decision 20

(B) In light of the overall purport of the pleadings stated above Nos. 2, 3, 3 through 5, and 6-1 and 2 with respect to the above 00-year shares issued by the Plaintiff at the time of 00, 70% of its capital stock (5.7% of capital stock, 1,140, 139, 97), 9.9% of its capital stock (5.6% of capital stock, 1,000, 1, 139, 977), 70% of the total amount of shares issued by the Plaintiff at the time of 0, 1350, 400, 60, 700, 700, 700, 400, 700, 400, 500, 500, 500, 140, 500, 140

Comprehensively taking account of the above evidence Eul evidence Nos. 7-1 through 45, Kim ○ sold 62,040 shares of the company of this case to ○○, a company which trades non-listed stocks, etc. among its own shares, at KRW 15,000 per share. ○○ Co., Ltd. shall be 50,000 per share to 45 persons, including Kim ○, and 30,000 won per share to 30,000 won per share to 30,000 won per share (the total amount of KRW 7,30,000 per share, KRW 21,9,000 per share). In light of the trading details of the company of this case around title trust, especially the number and trading volume of the company subject to the transaction, this part of the company's shares is 50,000 won per share between ○○ and 45,000 won per share, and this part of the company's claim is without merit.

(2) Determination as to the value of the donated property

In full view of the evidence set forth in Eul evidence Nos. 7-1 through 45, Kim○ sold 62,040 shares of the company of this case to ○○ Co., Ltd. which traded unlisted stocks, etc. among the company's treasury shares, 15,000 won per share. ○○ Co., Ltd. shall be 50,000 won per share (11,620 shares, 581,000 won in total) and 30,000 won per share (7,330 shares, 21,9 million won in total) to 2 persons, such as Kim○, etc.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.