Suwon District Court 2009Guhap6033 ( October 27, 2010)

early 208 Heavy2073 ( October 13, 2009)

The imposition of deemed gift tax on the ground that it cannot be deemed that the transfer of shares is made;

The deemed donation of title trust is established when a change in the register of shareholders is a change in the register of shareholders, and the statement of change in stocks cannot be the same as that of the register of shareholders. Thus, even if a report on change in stocks is made in the statement of change in stocks, it cannot be deemed that a change in stocks

2010Nu42739 Revocation of Disposition of Imposing gift tax

- Appellants

KimA

○ Head of tax office

Suwon District Court Decision 2009Guhap6033 Decided October 27, 2010

June 17, 201

oly 22, 2011

1. Revocation of a judgment of the first instance;

2. Of the instant lawsuit, the part regarding the imposition disposition of KRW 1,803,353,680 against the Plaintiff on February 4, 2008 by the Defendant is dismissed.

3. The Defendant’s imposition of KRW 48,880,00 and KRW 29,760,840 against the Plaintiff on February 4, 2008 shall be revoked.

4. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The Defendant’s imposition of KRW 48,880,00 and KRW 29,760,840 of the gift tax for the year 1999 against the Plaintiff on February 4, 2008, respectively, and the imposition of KRW 1,803,353,680 of the gift tax for the year 2004 shall be revoked.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked, and each disposition of KRW 48,880,000 and KRW 29,760,840 against the plaintiff on February 4, 2008 by the defendant shall be revoked.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

1. Details of the disposition;

The reasons for this Court to be stated in this part are the corresponding part of the reasons for the judgment of the court of first instance.

2. Whether the third disposition of this case is legitimate

We examine ex officio the legitimacy of the lawsuit as to this part.

Considering the overall purport of evidence No. 1-4 and No. 13-1 and No. 13-2, the Defendant may recognize the fact that the instant Disposition No. 3 was revoked ex officio on May 18, 201, in which the instant case is pending in the trial. If an administrative disposition is revoked, the disposition becomes retroactively null and void. As such, the part seeking the revocation of the instant Disposition No. 3, which is the disposition revoked among the instant lawsuit, is unlawful as there is no interest in litigation.

3. Whether the first and second dispositions of this case are legitimate

A. Plaintiff’s assertion and relevant statutes

The reasons for this Court to be stated in this part are the corresponding part of the reasons for the judgment of the court of first instance.

B. Determination

1) Relevant legal principles

Article 45-2(1) of the former Inheritance Tax and Gift Tax Act provides that “where the actual owner and the nominal owner are different from the property that requires a transfer or exercise of the right, in principle, the value of the relevant property shall be deemed to have been donated by the actual owner on the date on which the registration, etc. is made to the nominal owner.” However, since the transfer of registered shares does not oppose the company unless the name and address of the acquisitor is recorded in the register of shareholders, the transfer of registered shares constitutes a defense against the company. Therefore, it shall be deemed that the actual owner and the nominal owner of the property need a transfer or exercise of the right, which is a requirement for deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (see, e.g., Supreme Court Decision 2005Du10200, Feb. 8, 2007). On the other hand, even if the change of shares was reported in the list of shares and equity shares, it cannot be said that the change of shares was reported (see, e.g., Supreme Court Decision 2002Nu.

(ii) the facts of recognition

Considering the overall purport of Gap evidence 3-1 through 5, Eul evidence 4-1 to 31, and the whole purport of each statement and pleading, Eul established on March 16, 1987 with the title of HongB (Death on February 9, 200), GoCC and JeonD and accepted shares under its own name and paid the acquisition price of shares, and had paid the purchase price of shares. The NA did not appear to have been dead by the above HongB, and purchased shares of this case from HongB on June 22, 199, and purchased shares of this case from △E on August 23, 199, the △△ General purchased shares of this case from △△, and the △△ General Construction was made and made on March 16, 198, the △△ General Construction was made and made on March 16, 198, and the △△ General Construction was made and made on the 19th 19th 19th 3rd 19, respectively.

3) Determination

In light of the above facts in light of the legal principles as seen earlier, since △△ General Construction and △△ Construction did not issue or keep a register of shareholders required under the Commercial Act since their establishment, the Plaintiff did not enter the register of shareholders of each of the above companies with respect to the 1 and 2 shares of this case, so long as the Plaintiff entered the register of shareholders of each of the above companies with respect to the 1 and 2 shares, the mere fact that the Plaintiff entered the 1.2 shares as shareholders of each of the 1.2 shares of this case does not constitute a case where the actual owner and the nominal owner are different in the property requiring the transfer or exercise of rights.

In addition, Article 45-2(3) of the amended Inheritance Tax and Gift Tax Act provides that where the list of shareholders, etc. is not prepared, it shall be determined based on the statement of changes in stocks, etc. submitted to the chief of the district tax office having jurisdiction over the place of tax payment. However, the above provision shall apply from the portion of submitting a statement of changes in stocks, etc., stating that the name of the shareholder is changed after January 1, 2004 (Article 10 of the Addenda). Therefore, the above provision shall not apply to the 1st share purchase as of June 22, 1999 and the 2nd share purchase as of August 23, 1999.

Meanwhile, in applying Article 41-2 (1) of the former Inheritance Tax and Gift Tax Act, the first instance court held that in the case of shares, the term "registration, etc. necessary for the exercise or transfer of rights to registered shares" refers to "transfer of rights" under the Commercial Act, but in the case of shares, the term "ownership title" refers to the status in which shareholders can exercise shareholders' rights in relation to the company. However, in light of the need to regulate the title trust in which shareholders exercise rights as shareholders without keeping a register of shareholders prior to the enforcement date of the above amendment, documents related to shareholders, etc. and the statement on changes in stocks, etc., as stated in the list of shareholders, it should be deemed as "title trust" under the above provision. However, even in the case of shares as a concept element of title trust for applying the above provision, it is not reasonable to view that the statement submitted to the tax authority for the reason other than the shareholders' list stipulated in the Commercial Act is included in the concept of "public book indicating formal ownership change" under the Commercial Act. Therefore, it is not acceptable to deem that it constitutes an excessive transfer of shares under Article 12 of the former Commercial Act.

4) Sub-committee

Therefore, the plaintiff's primary assertion (as above) is with merit, without further determination as to the existence of the purpose of tax avoidance (as above (as to the claim (2)) of the first and second shares of this case, the first and second shares of this case must be revoked as unlawful.

4. Conclusion

Therefore, among the lawsuit in this case, the part concerning the imposition of KRW 1,803,353,680, which the defendant against the plaintiff on February 4, 2008 (the third disposition in this case) was illegal and dismissed, and the defendant's imposition of KRW 48,880,00, and KRW 29,760,840, respectively (the first and second disposition in this case), which belongs to the plaintiff on the same day, should be revoked as it is unlawful. However, the first judgment of the court of first instance is so unfair as to revoke the part against the defendant (the third disposition in this case) in the judgment of the court of first instance and dismissed the plaintiff's lawsuit corresponding to the revoked part, and the part against the plaintiff (the first and second disposition in this case) was revoked and accepted the plaintiff's claim corresponding to the revoked part. It is so decided as per Disposition by the assent of all participating Justices.