title trust with the purpose of tax avoidance, such as secondary tax liability of oligopolistic shareholders

In full view of the fact that one does not take civil and criminal measures in relation to the assertion that his name was stolen, the evidence submitted alone is insufficient to recognize the identity theft, and the second tax liability of oligopolistic shareholders under the Framework Act on National Taxes was avoided through the title trust, and the gift tax is legitimate.

2012Guhap31267 Revocation of Disposition of Imposition of Gift Tax

United StatesA

Head of Guro Tax Office

August 13, 2013

October 10, 2013

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

Each imposition of the gift tax by the Defendant on August 2, 2011 and the imposition of the gift tax by the Plaintiff, respectively, and the imposition of the gift tax by the Plaintiff on December 1, 2012 shall be revoked in entirety.

1. Details of the disposition;

A. BB General Logistics Co., Ltd. (hereinafter referred to as “B General Logistics”) was established on April 13, 2004 and was engaged in used cars export business. At the time of filing a corporate tax return for a business year from 2004 to 2005, it submitted a detailed statement of changes in stocks, etc. by reflecting the change of stockholders as follows.

Stockholders

As of December 31, 2004

Transfer Acquisition

As of December 31, 2005

February 11, 2005

July 13, 2005

3,000 Shares

54,000 Shares Transfer

57,000 Shares transfer

0 Shares 0

RedCC

57,000 Shares

0 Shares 0

D. D

0 Shares 0

57,000 Shares

57,000 Shares

E

0 Shares 0

3,000 Shares

3,000 Shares

Total

60,000 Shares

60,000 Shares

B. On April 13, 2004, on February 11, 2005, the director of the Central Regional Tax Office of China: (a) found that the FF, who is the actual owner of the non-party company, has each nominal trust with the non-party company’s shares 3,000 shares of the non-party company (hereinafter “the non-party company’s shares 1”); and (b) on February 11, 2005, the non-party company’s shares 54,00 shares (hereinafter “the non-party company’s shares 2 shares”; and (c) notified the Defendant of the gift tax data.

C. Accordingly, on August 2, 201, the Defendant assessed the first shares as OOO per share and the second shares as OOO per share in accordance with the supplementary assessment method provided by the former Inheritance Tax and Gift Tax Act (amended by Act No. 7580, Jul. 13, 2005; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), and decided on August 2, 201 on April 13, 2004 as gift tax under Article 45-2 of the Inheritance Tax and Gift Tax Act, and notified the Plaintiff of the determination and notification of OOOO(including additional OOO) and additional tax (including additional tax) of the gift tax on February 11, 2005.

D. On March 12, 2012, the Plaintiff appealed and filed a petition for an adjudication with the Tax Tribunal, but was dismissed on June 22, 2012.

E. Meanwhile, on December 1, 2012 during the instant lawsuit pending, the Defendant revoked ex officio the part of the penalty tax (OOOO on April 13, 2004 and OOOOO on February 11, 2005) among the disposition imposing the gift tax on December 1, 2012, and determined and notified OOOO of the gift tax on April 13, 2004 and on February 111, 2005 (hereinafter the first disposition imposing the gift tax on August 2, 201 and the remainder of the disposition imposing the gift tax on December 1, 201, hereinafter “the instant disposition”).

[Reasons for Recognition] Class A: Evidence Nos. 1, 2, 4, 6, 27, 28 (including numbers; hereinafter the same shall apply); Evidence Nos. 1 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) Since HF unilaterally uses the Plaintiff’s name without the Plaintiff’s consent and unilaterally registers the Plaintiff in the register of shareholders, it cannot be deemed as title trust.

2) Even if the Plaintiff received the title trust of the instant shares, it was aimed at expanding the limit of the non-party company’s trade financing, and there was no tax avoidance purpose.

3) In evaluating the shares of this case in accordance with the supplementary assessment method under the former Inheritance Tax and Gift Tax Act, the leased security deposit appropriated as the assets of the non-party company as of the end of 2004 and the short-term loans to the representative director is a processed asset, and thus, it should be excluded from the evaluation.

B. Relevant statutes

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

C. Determination

1) Determination on the first argument

The provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act shall apply in cases where a real owner or a nominal owner makes a registration, etc. in the future by agreement or communication with the nominal owner in order to transfer or exercise the right, and thus, such provision shall not apply in cases where a registration, etc. is made unilaterally by using the name of the nominal owner, regardless of the intent of the nominal owner. In such cases, the tax authority may only prove that the actual owner is different from the nominal owner, and the burden of proving that the registration, etc., of the nominal owner was made by a unilateral act of the real owner regardless of the intent of the nominal owner should be borne by the nominal owner who asserts such act (see, e.g.

In light of the above legal principles, the following circumstances, which can be acknowledged by comprehensively considering the overall purport of arguments, as to this case's health class, Gap evidence Nos. 5, 7, Eul evidence Nos. 3 and 4, i.e., the transfer agreement of July 13, 2005 concerning the shares of this case requires the plaintiff himself/herself a certificate of personal seal impression issued on February 24, 2005, and the plaintiff voluntarily filed a transfer income tax report on the transfer of shares of this case. ② According to the corporate register of the non-party company, the plaintiff was the auditor from April 14, 2004 to February 11, 205, from February 11, 2005 to July 14, 2005 to the auditor from February 14, 2009 to the fact that the plaintiff continued to lend his/her name to the non-party 20G from 30 to 25G 205, respectively, and there is no reason to acknowledge that the plaintiff had any other evidence from 25G 200G 2007.25.25.

2) Judgment on the second argument

The legislative purport of deemed donation of a nominal trust property is to recognize an exception to the principle of substantial taxation by effectively preventing tax avoidance and realizing tax justice. Thus, if it is recognized that the title trust was made for any reason other than the tax avoidance purpose, and only a minor reduction of tax incidental to such title trust exists, it cannot be readily concluded that there was an objective of tax avoidance. However, in light of the legislative purport as seen above, it cannot be deemed that there was an intention of tax avoidance by applying the proviso to the above provision only if the purpose of title trust is not included in the purpose of tax avoidance, and it cannot be deemed that there was an intention of tax avoidance. In this case, the burden of proving that there was no objective of tax avoidance is not a single object of tax avoidance (see, e.g., Supreme Court Decisions 2007Du1931, Apr. 9, 2009; 2007Du17175, Sept. 8, 2011; 2007Du165, etc.).

In light of the above legal principles, the following circumstances can be acknowledged by comprehensively taking account of the overall purport of arguments as to this case's health team, Gap's statement Nos. 5 and 6, and the fact-finding of the Industrial Bank of Korea of this court, i.e., the plaintiff must prove the fact that the plaintiff had a clear objective of tax avoidance in order to recognize that there was no tax avoidance purpose in the title trust of this case. The plaintiff asserted that the title trust of this case was made for the purpose of expanding the limit of trade financing of the non-party company's trade financing, and there is no evidence to prove that the limit of actual trade financing of the non-party company was extended during the period of the title trust of this case. (ii) Rather, the non-party company obtained the limit of trade bill loans in the balance sheet of business year 2004 through 205 after the termination of the title trust of this case, and (iii) the non-party company's actual owner of the non-party company did not have any evidence to acknowledge the non-party company's stocks in title trust of this case.

3) Judgment on the third argument

In full view of the statements in Gap evidence Nos. 6, 23, and 24, the non-party company was established on April 13, 2004 with the establishment capital of the non-party company as OOO deposit on April 26, 2004; the cash of the non-party company was deposited with the temporary loan of the representative director on April 30, 2004; the non-party company head of the Tong (one bank, O-O-O-O-O-O-O-O-O-O-O-O) was established on April 26, 2004; the balance at the time of the establishment was zero won; there was no details of the deposit and loan granted as stated in the above cash statement; the cash amount was stated on the balance sheet of the non-party company as the net asset value of the non-party company, O2O-2, 204, 204, 204, 204, and 300.

According to the above facts, it is difficult to view that the non-party company actually paid the OOO or the representative director of April 30, 2004 as the lease deposit for lease on April 26, 2004. However, the non-party company's incorporated capital flows into cash at the time of the incorporation of the company, and the above OOO or the representative director's loan OO or the representative director's loan OO or the representative director's loan OO or the loan OO or the loan OO can be deemed as the provisional payment for EOF, which is the actual owner of the non-party company, and thus, it cannot be deemed as a processed asset. The plaintiff's assertion is without merit.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit.