Seoul High Court 2008Nu23902 (No. 14, 2009)

meaning of the provision that no tax liability shall be imposed prior to the purchase of specified bonds.

The meaning of the provision that no tax liability shall be imposed prior to the purchase of specific bonds is that no tax shall be imposed on the source of the fund for which a specific bond is purchased, and it does not mean that no tax shall be imposed on all financial transactions arising after going through the procedure for the purchase of specific bonds.

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

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All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

쇠鹬 쇠鹬 3000 쇠鹬 3000

The grounds of appeal are examined.

1. Whether there is a violation of the rules of evidence or the allocation of burden of proof or substance over form principle

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be borne by the imposing authority. However, if it is revealed that the facts of taxation requirement have been presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirement, unless the other party proves that the facts in question are not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 2003Du14284, Apr. 27, 20

원심은 제1심 판결이유를 인용하여, 판시와 같은 인정사실 및 그에 나타난 사정들을 종합하면, 이 사건 각 주식의 실제 소유자는 그 증자대금의 출처인 ☆☆디벨먼, △△건설, ⏿⏿산업개발 등의 실제 사업주인 나○○이고, 그 소유명의를 원고들에게 명의신탁한 것이며, 이 사건 예금채권도 원고 나☆☆가 나○○로부터 증여받은 것이라고 판단하였는바, 원심이 적법하게 채택한 증거 및 위 법리에 비추어 보면, 원심의 위와 같은 사실인정과 판단은 옳은 것으로 수긍이 가고, 거기에 상고이유에서 주장하는 바와 같은 입증책임분배 내지 실질과세원칙에 관한 법리오해, 채증법칙 위반 등의 위법이 없다.

2. Whether the purpose of tax avoidance exists;

The legislative intent of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002) is to recognize exceptions 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 as having been made 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 the purpose of tax avoidance exists. However, in light of the legislative intent as seen above, only if the purpose of the title trust is not included in the purpose of tax avoidance, it cannot be deemed that there was a deemed donation by applying the proviso of the said provision, and thus, it cannot be said that there was no other purpose and intent of tax avoidance. In this case, the burden of proving that there was no purpose of tax avoidance exists a nominal person who asserts it (see Supreme Court Decision 2007Du19331, Apr. 9, 2009).

The lower court, citing the reasoning of the judgment of the first instance, did not accept the Plaintiffs’ assertion that there was no tax avoidance purpose on each of the instant shares, on the grounds that it could not be deemed that there was no tax avoidance purpose in the title trust of each of the instant shares, by comprehensively taking account of the circumstances as indicated in its reasoning, on the grounds that it was insufficient to prove that there was no

In light of the evidence duly adopted by the court below and the above legal principles, the above judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the purpose of tax avoidance in the constructive gift of trust property.

3. Whether the special taxation for specific claims is applied;

Article 9 of the Addenda to the Act on Real Name Financial Transactions and Confidentiality (amended by Act No. 5493 of Dec. 31, 1997) provides that "the holder of specific bonds shall not investigate the source of the fund, notwithstanding the tax-related Acts, and shall not impose any tax prior to the purchase of the bonds with taxation data." The court below should interpret the purport that the owner of specific bonds shall not impose any tax on the source of the fund for which the specific bonds are purchased, and on the premise that it shall not be interpreted that the owner of specific bonds should not be taxed on the source of the fund for which the specific bonds are purchased, and on the premise that it shall not be interpreted that the taxation should not be imposed on all the fund transactions incurred after the purchase of specific bonds should not be levied on the owner of the specific bonds. If part of the price was sold to the plaintiff Do, Do governor, for the reason that the imposition of gift tax should be exempted under Article 9 of the Addenda to the above case, the court below rejected the plaintiff Na-won's assertion that the above measures are just and there is no violation of law as alleged in the grounds for appeal.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.