early 2013 Middle 4298 ( October 16, 2014)

The provisions on deemed donation under Article 45-2 of the Inheritance Tax and Gift Tax Act shall apply where the registration, etc. is made in the name of the actual owner or the nominal owner by agreement or communication.

The provisions on deemed donation under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act may not apply where a registration, etc. is made unilaterally using the name of the nominal owner, regardless of the intent

Legal fiction of donation of title trust property under Article 45-2 of the former Inheritance Tax and Gift Tax Act

2014Guhap58342 Such revocation as gift tax

GuA and two others

○ Head of tax office

December 10, 2015

oly 2016.18

1. Of the instant lawsuit, the part that exceeds the amount indicated in the column of “the corrected tax amount” shall be dismissed in relation to the imposition disposition listed in the separate sheet Nos. 3 through 6, 10, and 15 of the separate sheet No. 1.

2. In the imposition disposition listed in the [Attachment 1] No. 1 on July 8, 2013, the part exceeding ○○○ from among the illegal under-reported additional taxes on the Plaintiff’s ○○○○○○, and the part exceeding ○○○ from among the illegal under-reported additional taxes on the imposition disposition described in the No. 7, the part exceeding ○○○○ from among the illegal under-reported additional taxes on the imposition disposition set forth in the No. 8, the part exceeding ○○○○ from among the ○○○○○○○, and the part exceeding the ○○○○ from among the penalty taxes on the imposition disposition set forth in the No. 14 from the oldA, the former BB from among the penalty taxes on the imposition disposition set forth in the No. 16, the part exceeding ○○ from among the penalty taxes on the illegal under-reported report, and the part exceeding ○○○ from among the penalty taxes on the imposition disposition set forth

3. The plaintiffs' remaining claims are dismissed.

4. 5/6 of the costs of lawsuit are assessed against the plaintiffs, and the remainder is assessed against the defendant.

Cheong-gu Office

The defendant's imposition disposition on July 8, 2013, stating "total amount of imposition" in the attached Form 1 list against the plaintiffs, is revoked.

1. Details of the disposition;

A. The plaintiff old-gu worked as the second shareholder and the managing director of the K Distribution Co., Ltd. (hereinafter "the company in this case") whose business purpose is Schlage's management. The plaintiff lowestCC is the defendant's wife, and the plaintiff's GuB is the plaintiff's children.

B. On January 19, 2012, the Plaintiffs transferred the shares 1,279,770 shares of the instant company, which were held in their names, to ○○○○○○○ as indicated below, and reported and paid ○○○○○ on May 31, 2012.

C. As a result of the investigation of transfer income tax and gift tax on the Plaintiffs from January 31, 2013 to June 4, 2013, the commissioner of the SSS Regional Tax Office: ①: (a) the shares of the instant company without any evidence to deem that the nominal owner of the shares out of the shares so transferred has exercised shareholder rights under his/her own account (hereinafter “instant shares”); (b) the shares in title trust with the rest of the Plaintiffs; (c) the shares in question shall be deemed to have been trusted to the other Plaintiffs; (d) the shares in question; (e) the shares in question shall be deemed to have been transferred to the Plaintiff; (e) the shares in question; (e) the shares in question shall be deemed to have been transferred to the Plaintiff 238,078; and (e) the shares in question shall be reported to the Plaintiff 40,000 won under the former Inheritance Tax and Gift Tax Act (amended by Act No. 1357, Dec. 15, 2015; hereinafter referred to as “○○○○”).

D. Accordingly, on July 8, 2013, the Defendant issued the Plaintiff’s revised and notified the Plaintiff’s ○○○○○○○○○ in the transfer income tax for the year 2012 to the Plaintiff’s Gu and the Plaintiff’s 2005 through 2012, respectively, and notified the Plaintiff’s ○○○ in the gift tax for the year 2005 through 2012 to the Plaintiff’s ○○○ in the gift tax for the year 2004 through 2012, and notified the Plaintiff’s NA as a joint obligor of the gift tax for the gift tax for the gift of title trust (the details of imposition are the same as indicated in the “tax amount imposed” in the attached Form 1’s list). Meanwhile, the Defendant revised the imposition of additional tax for the tax rate of 40% in relation to the gift tax for the year 204 through 2006 (the details of imposition of the tax imposed shall be the same as the “tax amount corrected and 200%”.

E. The Plaintiffs appealed and filed an appeal with the Tax Tribunal on October 1, 2013, but was dismissed on June 16, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 through 5, 16 (including each number, hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiffs' assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

A. The Plaintiff LCC and the formerB sold the instant shares to PP Co., Ltd., but not the Plaintiff’s title trust with respect to the instant shares.

B. Even if the Plaintiff’s oldA trusted the shares of this case to the rest of the Plaintiffs, the shares allocated free of charge in proportion to the shares held by the trustee according to the capital transfer of the surplus, namely, the shares acquired on April 11, 2006 by the Plaintiff MaximumCC and the formerB (No. 5, 14 in the list of the disposition imposing attached Table 1) cannot be deemed as a new title trust separately from the shares held in the existing title trust, and thus, the provisions on deemed donation of the property held in the title trust under the main sentence of Article 45-2(1)

C. The Defendant: (a) deemed that the Plaintiff’s old shares were nominal and imposed gift tax for the year 2004 through 2008 on the remaining Plaintiffs; (b) deemed that the Plaintiff, the Plaintiff, the former, and the former, sold the instant shares to the PP Co., Ltd. and received cash donation from the Plaintiff’s old, thereby imposing gift tax for the year 2012; and (c) was unlawful since it imposed double taxation on the same income source as the same person.

D. Even if the Plaintiff’s oldA trusted the shares of this case to the rest of the Plaintiffs, it is unlawful to impose the additional tax on negligent acts of 40% of the tax rate on the ground that it is difficult to view it as filing a tax base by improper means solely on such circumstances.

3. Whether the reduced or corrected part among the lawsuits in this case is lawful

Before the judgment on the plaintiffs' assertion, we examine ex officio on the legitimacy of the part of the claim for revocation as to the excess of the stated amount in the "amount of tax amount corrected" in attached Form 1 in relation to the gift tax belonging to the year 2004 or 2006 (attached Form 3 through 6, 10 or 15) among the lawsuits of this case.

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2009Du16879, Apr. 29, 2010).

(1) As seen earlier, prior to the closing of argument, the Defendant: (a) notified the Plaintiffs of the gift tax of KRW 11,15,00 for year 205; (b) the portion exceeding KRW 13,58,500 for the gift tax of KRW 14,938,50 for year 206; (c) the portion exceeding KRW 2,269,830 for the gift tax of KRW 2,960 for year 206; (d) the portion exceeding the amount exceeding KRW 2,61,380 for the gift tax of KRW 206 for year 206; (b) the amount exceeding KRW 2,60 for the gift tax of KRW 2,93,380 for year 20; and (c) the portion exceeding the amount exceeding KRW 360 for the gift tax of KRW 360 for year 20,815,450 for year 204; and (g) the portion exceeding the amount exceeding KRW 36307,36361,7,207,3607.

4. Whether the instant disposition is lawful

A. Determination as to whether title trust of the instant shares was held

1) Plaintiff MaximumCC part

In full view of the following circumstances acknowledged by the evidence as mentioned above, Gap's shares in the name of the plaintiff CC (the shares allocated free of charge on April 11, 2006, as seen in the following sub-paragraph (b) cannot be deemed as a title trust) among the shares in this case, it is reasonable to view the plaintiff 1 to have held the title trust of the plaintiff 2 to the plaintiff 20.

① From May 25, 2001 to April 10, 2008, Plaintiff LA acquired 39,030 shares of the instant company in its name on a 16-time basis. The Defendant determined that Plaintiff A held that Plaintiff 238,078 shares of the instant company (in the case of shares acquired on April 11, 2006, it determined that 6,798 shares were held in title by title trust in accordance with the ratio of title trust shares held by the person who was granted free of charge and the shares held in real possession), as indicated in the following table.

The main grounds for the Defendant’s determination as above are the source of the fund at the time of acquiring the pertinent shares, and in the case of shares acquired on August 30, 2005 and April 8, 2006, the Plaintiff’s old-gu purchased shares under its name (Seoul ○○○ apartment, ○○○○○○, hereinafter “instant real estate”) by depositing the funds in the account under its name (F Bank ○○○-○, hereinafter “the instant account”) and paying out the purchase price of the shares. The Plaintiff’s acquisition of shares on May 4, 2006 was not the case of shares acquired by the Plaintiff’s old-gu account due to deposit of checks (10,000,000 won) in the instant account, and purchase of shares under the Plaintiff’s name, which was not the case of shares acquired on May 208, 2007, but the purchase price of shares was not the case of the Plaintiff’s nominal trust, but the case of shares acquired on May 20, 2007.

② In relation to the source of the funds that acquired the instant shares, the Plaintiff LCC, in its own statement (Evidence B No. 8) and the loans received under its own name. However, in the course of tax investigation, it reversed the Plaintiff’s statement that acquired the instant account with the funds in the instant account by asserting that it was a family joint account.

③ The dividends on the instant shares received by the Plaintiff LCC were mostly transferred to the instant account under the name of the Plaintiff, except for some small amount, and was consumed for the personal purpose of the Plaintiff’s use, such as the acquisition of the Plaintiff’s shares and the repayment of loans.

④ The Plaintiff LCC asserted that the instant account is only the name of the Plaintiff, but also the Plaintiff’s joint family account, namely, the Plaintiff’s joint family account. However, most of the money deposited into the instant account ( approximately KRW 1.9 billion out of the total amount KRW 2.9 billion) was deposited by the Plaintiff, and the money transferred to the instant account is merely KRW 200 million, and most of the money transferred by the Plaintiff LCC to the instant account was remitted dividends on the instant shares received by the PlaintiffCC. Otherwise, there is no other circumstance to regard the instant account as the Plaintiff’s joint family account, such as the Plaintiff’s assertion.

⑤ Although Plaintiff LCC was a major shareholder holding 3.125% of the shares of the instant company, the number of shares held by it and the acquisition value per share do not only gather, but also did not exercise the rights as a shareholder, such as not attending a general meeting of shareholders.

6) The plaintiffs asserts that since the holding ratio of the shares of the company in this case by Plaintiff A and Plaintiff MaximumCC is in fact consistent with the ratio calculated by adding their respective tax income from 1990 to 2011, their shares should be deemed to have been acquired with their own funds.

However, as seen earlier, the Defendant’s determination that only the instant shares, among the instant shares in the name of Plaintiff LCC, was based on the fact that the source of the fund was confirmed as Plaintiff A. As such, it is difficult to reverse the above determination merely by simply comparing the income ratio of Plaintiff A and LCC and the holding ratio of the instant shares, as alleged by the Plaintiffs.

7) In addition, since the Plaintiff purchased the instant real estate with the financial resources jointly prepared by the Plaintiff, the Plaintiff’s joint property should be deemed as the above Plaintiffs’ joint property. The Plaintiff asserted that the Plaintiff’s largestCC acquired the instant company’s stocks on August 30, 2005 and April 8, 2006 with the loans offered as security, and thus, the Plaintiff’s acquisition of the said stocks can be deemed as the Plaintiff’s funds.

However, the purchase of the instant real property with the financial resources jointly prepared by the Plaintiff GuA and the LCC

There is no evidence to support the plaintiffs' assertion.

8 The Plaintiffs asserted that the Plaintiff would have been able to acquire a higher price of transfer if they would have sold the instant shares to the PP stock company after recognizing the title trust of the shares and returning the name in that name (the shares in the Plaintiff’s name were traded in KRW 26,881 per share with the recognition of management premium and traded in KRW 10,500 per share) and that the remaining shares in the Plaintiff’s name were not so traded in KRW 10,50 per share). This assertion is due to the fact that Plaintiff LCC and the formerB actually owned the instant shares.

However, in the event that the Plaintiff’s shares were sold after returning to its name, there is no guarantee that the Plaintiffs would have been transferred to the entire sale shares as claimed by the Plaintiffs, as well as that the Plaintiff’s Gu may naturally donate the proceeds from the sale of the shares to the Plaintiff MaximumCC and the GuB by maintaining the title trust of the shares. If the facts of title trust were not known to the tax authority, the gift tax could also be avoided in the process. Therefore, it is insufficient to reverse the judgment that the shares of this case were held in title trust to the Plaintiff MaximumCC and the GuB.

① Plaintiff LCC and GuB asserted that the instant shares did not constitute title trust on the ground that they acquired real estate in their names with the price of the instant shares, deposited, etc., and that the instant shares were finally reverted to them. However, if Plaintiff formerA intended to donate the instant shares to the said Plaintiffs, from the title trust, the fact that the said price of the transfer was the Plaintiff LCC and GuB does not hinder the determination of whether the instant shares were nominal trust. Meanwhile, Plaintiff LCC provided real estate acquired from the price of the instant shares (○○○○-2 land and ground buildings, ○○○-2, ○○, and ○○○-2) as collateral for UU, Inc., in which Plaintiff formerA had worked as the representative director, such substantial profits may also be deemed as taking place by Plaintiff AA.

(10) The Plaintiffs asserted that: (a) the Plaintiff LCC and the formerB performed one act on the entire shares held in their names, including the shares held in the title trust and the shares held in the title trust; (b) the Plaintiff’s exercise of voting rights by proxy through the Plaintiff’s GuA; and (c) the said act constitutes the evidence of title trust in relation to the shares held in the instant case; and (d) the fact that the remaining shares held in the name of the

However, as seen earlier, the Defendant determined that the instant shares, among the shares of the Plaintiff LCC and the formerB, the source of the instant shares, was the Plaintiff’s oldA and determined as the title trust. The remainder is not because it is clear that the Plaintiff’s largestCC and the formerB’s funds were acquired from the Plaintiff’s funds, but it is not deemed as the title trust because the source of the funds was not verified. As such, it is not sufficient that the Plaintiff’s formerA exercises voting rights on all the remaining shares of the Plaintiffs, made a transfer contract by proxy, prepared a transfer contract, and the Defendant determined part of the shares as the shares held in title trust.

2) Plaintiff B’s old part

Comprehensively taking account of the circumstances acknowledged in the part of Plaintiff LCC as above and the evidence as seen earlier, and the following circumstances acknowledged by the entry of Plaintiff B’s evidence No. 5 and the purport of the entire pleadings, it is reasonable to view that Plaintiff B’s shares out of the instant shares (the shares allocated free of charge on April 11, 2006, as seen in the following sub-paragraph (b) cannot be deemed to have been a title trust) was held in title trust with Plaintiff BB.

① From December 30, 200 to July 30, 2010, Plaintiff B acquired 171,330 shares of the instant company in its name on 26 occasions, and the Defendant determined that Plaintiff B held that Plaintiff B held title trust only with the following 57,087 shares (in the case of shares acquired on April 11, 2006, 1,347 shares under title trust held before capital increase without compensation and shares held in substance) as indicated in the following table.

The main grounds for the Defendant’s determination as above are the source of the fund at the time of acquiring the pertinent shares, and in the case of shares acquired on September 4, 2002, March 11, 2006, March 21, 2006, April 8, 2006, and July 28, 2006, the Plaintiff purchased shares from the instant account by paying out the purchase price of shares from the instant account, and the Plaintiff’s purchase of shares by paying out the purchase price of shares from the instant account.

② The Plaintiff asserts that before 2003, the formerB acquired shares with his own money, and that after 2003, the shares were acquired with cash donation from the Plaintiff’s GuB, and that after 2005, the shares were acquired with dividends on the shares in its name.

However, Plaintiff B was a minor at the time of acquiring the instant shares by birth on April 192, 192, and did not submit any evidentiary document regarding the part on which Plaintiff B acquired the shares by cash, and the part on which Plaintiff B asserted that Plaintiff B acquired the shares by means of cash donation from Plaintiff BB on August 20, 2003, only reported the gift tax on KRW 30,005,000 on one occasion with respect to the acquisition of the shares in this case, and there was no report on the gift tax on the acquisition of the shares.

③ The dividends on the instant shares received by the Plaintiff B were transferred to the instant account in the name of the Plaintiff, except for some small amount, and was consumed for the personal purpose of the Plaintiff B.

④ Plaintiff B is not only the number of stocks owned by it and the acquisition value per share, but also the general meeting of shareholders, and there is no substantial exercise of rights as a shareholder.

⑤ Plaintiff B’s acquisition of the instant shares was conducted according to the Plaintiff’s unilateral decision regardless of the Plaintiff’s intent, and thus, the provision on deemed donation of title trust cannot be applied.

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 in the future of the nominal owner by agreement or communication with respect to property, the transfer or exercise of the right of which requires registration, etc., and thus, where a registration, etc. is made unilaterally by using the nominal owner regardless of the intent of the nominal owner. In such cases, the tax authority can only prove that the actual owner is different from the nominal owner, and the verification 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 made by the nominal owner who asserts such act (Supreme Court Decision 2007Du1

In this case, the Plaintiffs asserted only the circumstance that the Plaintiff’s oldB was the minor at the time of acquiring the instant shares, and no evidence was submitted to prove that the acquisition of the instant shares was made according to the unilateral decision of the Plaintiff’s oldB regardless of the intent of the Plaintiff’s oldB.

B. Determination as to whether a title trust of the shares allocated gratuitously is held

1) Relevant legal principles

The main text of Article 45-2(1) of the former Inheritance Tax Act is one of the exceptions to the substance over form principle under Article 14 of the Framework Act on National Taxes, which prevents title trust from being abused as a means of tax avoidance, and is a provision that is limited within the extent of realizing tax justice. In addition, even if the actual owner and nominal owner transfer of retained earnings to the nominal holder as a result of the transfer of retained earnings to the nominal holder, the net assets or profits of the issuing corporation and the actual shareholder do not change the equity ratio of the nominal holder, and thus, it cannot be said that there is no additional purpose of tax avoidance other than the purpose of tax avoidance under the title trust of existing shares, on the ground that the actual shareholder did not transfer a title to the nominal holder under his/her own name. As such, the increase in the net assets in excess of the net assets issued by the issuing corporation is not subject to the provision on deemed donation under the main sentence of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (see, e.g., Supreme Court Decision 2009Du213600, supra.).).

2) In the instant case:

In light of the above legal principles, the shares acquired on April 11, 2006 by Plaintiff LCC and GuB (Attachment 1 Nos. 5, 14) are deemed to have been transferred separately from the shares held in title by Plaintiff LCC and GuB separately from the shares held in the existing title trust by Plaintiff LCC, and the formerB. Accordingly, the part imposing gift tax based on the main sentence of Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act on the shares allocated to Plaintiff LCC and the formerB, the title trustee of the existing shares, as the shares were distributed to the shareholders with earned surplus and other capital surplus, after the company trusted the shares of the instant company to the Plaintiff LCC and the formerB. Accordingly, the part imposing gift tax on the shares gratuitously allocated to Plaintiff LCC and the formerB, other than the existing shares, is unlawful.

C. Determination on double taxation

The imposition of gift tax by applying the provision on deemed donation of title trust on stocks itself and the imposition of gift tax on the donation of the proceeds from the sale of the stocks differs from the requirements for establishing tax liability and time, etc. In other words, while the imposition of gift tax based on the deemed donation of title trust is of the nature as a sanction to prohibit the act of title trust itself, the subsequent donation of the proceeds from the sale is a substantial donation, and thus, is subject to independent gift tax. In addition, if each of the requirements for taxation meets the requirements for separate taxation, it is difficult

D. Determination on the part of additional tax on negligent tax returns due to an unlawful act

① The Defendant imposed gift tax on the remaining Plaintiffs regarding the title trust of the instant shares by the Plaintiff’s title trust (illegal non-declaration penalty tax) and ② penalty tax on the non-declaration of report by unlawful act only on the portion of under-reported transfer income tax (unfair under-reported penalty tax) by the Plaintiff’s old-AA, and ③ penalty tax on the portion that the Plaintiff’s old-AA donated the purchase price of the instant shares to the remaining Plaintiffs was imposed on the portion that the Plaintiff’s old-A made a donation of the purchase price of the instant shares. Accordingly,

1) Additional tax for improper non-declaration

A) Relevant legal principles

According to Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 111124, Dec. 31, 2011; hereinafter the same), where a taxpayer has a tax base without filing a return by improper means (referring to any method prescribed by Presidential Decree as violating the duty to report the tax base or the amount of national taxes on the basis of the concealment or pretending all or part of the fact that serves as the basis for calculating the tax base or the amount of national taxes), an amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the amount of the tax base without filing a return in an unjust manner to the tax base shall be added to the payable tax amount or deducted from the refundable tax amount. Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter the same) provides for a false recording of books, such as preparation of false books, evidence or false evidence or fraudulent documents (see subparagraph 2).

B) In the instant case:

Comprehensively taking account of all the following circumstances acknowledged by comprehensively taking account of the purport of the entire pleadings, it is difficult to view that the Plaintiffs failed to report the tax base of gift tax in accordance with the title trust of this case and failed to report the tax base in an unjust manner, and thus, it is difficult to apply the unfair non-return rate of penalty tax

① The penalty tax on illegal non-declaration is imposed on an act of without filing a report on a specific tax subject to the duty to report by concealing and citing the facts that form the basis of the tax base, etc. in an unjust manner. In the case of deemed donation, the subject matter of the report is based on the title trust, and thus, the fact constituting the basis of the tax base, etc. is merely limited to the title trust itself, and it is difficult to expand the scope of the underlying facts of the tax avoided by the title trust. In other words, even if the subject matter of the concealment and Ga for the imposition of the penalty tax on the gift tax on the gift tax on the gift tax on the donation of the title trust in this case was concealed and proposed through the title trust in this case, the fact that the gift tax on the gift tax on the donation of the title trust in this case cannot be the basis of the penalty tax on the gift tax on the gift tax on the donation of the title trust in this case cannot be considered as having been considered as having concealed and induced by the method of Article 27(2) of the Enforcement Decree of the Framework Act on National Taxes.

② The Defendant asserts that: (a) the Plaintiffs, by preparing a false stock sales contract, etc.; (b) transferred shares transfer proceeds to the bank accounts under the name of the Plaintiff LCC and the formerB; and (c) the Plaintiff, the actual shareholder; and (b) the Plaintiff, the title trustee, and the formerB, concealed and proposed the instant title trust by citing the Plaintiff, the Plaintiff, the title trustee, and the formerB, as

However, in most cases where a title trust was made, most of the false contracts were conducted, and the imposition of the unfair non-reported penalty tax without exception was made at a level similar to the plaintiffs' acts such as the preparation of a false contract and the receipt of funds. In all such cases, it is inconsistent with the purport of Article 47-2 of the former Framework Act on National Taxes, which provides that only when the facts subject to taxation were concealed and proposed by active means by examining the specific facts at a different rate between 20% and 40% of the non-reported penalty tax rate, which is contrary to the purport of Article 47-2 of the former Framework Act, shall apply to the case of a title trust of stocks. In other words, unlike the case of a real estate, the agreement itself is valid in the case of a title trust of stocks, and accordingly, the ownership is transferred to and reverted to the trustee and the ownership is reserved in the relationship between the truster and the trustee, namely, in accordance with the instant title trust agreement, it is merely accompanied by the use of the name of the plaintiff, the lowest and the formerB owner.

③ Even if a gift tax is imposed based on the constructive gift for title trust, the substance of the relevant transaction is not determined as a gift, but rather, as an exception to the substance over form principle, the gift tax is imposed by deeming the donation as a gift, even though there is no substance of the donation (see Supreme Court Decision 2002Du12137, Sept. 24, 2004). Ultimately, the gift tax resulting from the constructive gift for title trust is a kind of sanction when a title trust is held for the purpose of tax avoidance (see, e.g., Constitutional Court en banc Decision 2012Hun-Ba259, Sept. 26, 2013). Accordingly, imposing a high rate of unfair non-reported penalty tax without any exception is the same as imposing double sanction on the title trust for the purpose of tax avoidance. Therefore, it is an excessive sanction

C) Sub-determination

Ultimately, in the disposition of this case, the amount of non-declaration penalty tax within the scope of the amount applying the general non-declaration penalty tax rate (20%) in relation to the non-declaration penalty tax in relation to the non-declaration penalty tax as stated in the order of 7,8,16, and 17 in the list of the disposition of this case (excluding the part ex officio cancellation in excess of the amount which already applied the general non-declaration penalty tax rate) due to the constructive gift of title trust among the disposition of this case. In other words, in the disposition of imposition listed in the table of the attached tax 1, the amount of non-declaration penalty tax 2,615,960 out of the amount of non-declaration penalty tax 2,615,960, 1,307, 980 among the 7,421,760 won, 53,460 won, 160 won, 560 won, 26, 7307, 197, 297).

2) Illegal underreported penalty tax

A) Relevant legal principles

Article 47-3(2) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the same) provides for the imposition of penalty taxes in cases of an unfair under-reported return, where the whole or part of the facts, which served as the basis for calculating the tax base or amount of national tax, are concealed or pretended, it is difficult or considerably difficult to impose and collect taxes, and thus, it is understood that imposing penalty taxes much higher than imposing penalty taxes for a general under-reported return, which is not based on the "unfair method", in order to induce a taxpayer to faithfully report the tax

In addition, Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes, which explicitly provides for cases that can be seen as "unfair methods", stipulates that the purpose of evading national taxes is necessary in order to fall under "unfair methods" under subparagraph 6 of Article 27 of the former Enforcement Decree of the Framework Act on National Taxes, which can be seen as "unfair methods". Therefore, "inform of the tax base" should be construed as "in cases of underreporting the tax base due to active acts, such as making it difficult to detect the taxation requirements on national taxes or making it difficult to detect false facts difficult to determine the taxation requirements on national taxes, it shall be construed as "in cases of underreporting the tax base due to such unlawful acts as evading the progressive tax rate and applying the provisions on carried-over losses (see, e.g., Supreme Court Decision 2013Du12362, Nov. 28, 2013).

B) In the instant case:

The essence of the penalty tax is that an administrative sanction that imposes liability on a taxpayer for breach of cooperative duty is constituted in the form of tax, and its nature is the means to secure the collection of the principal tax, and it is imposed by the relevant tax item of the relevant national tax under the relevant tax law. Therefore, in order to impose an unfair under-reported penalty on the capital gains tax of this case, it should be the case where a tax base of the capital gains tax is underreported by an active act such as making it difficult to detect the requirement of taxation, which is the principal tax, or

However, in this case, after transferring the instant shares held in title by the Plaintiff to the remaining Plaintiffs, the Plaintiff reported and paid the transfer income tax under the name of the other Plaintiffs, the trustee, and there seems to be no omission in the process.

Although there is room to view that Plaintiff’s act of title trust of this case’s stocks itself was an unlawful act by forging false facts, this ought to be the purpose of evading capital gains tax, which is the principal tax, to be subject to an unfair under-reported penalty, and even though Plaintiff’s act of reporting and paying capital gains tax on the transfer of this case’s stocks under the name of the title truster without hiding the title trust in relation to the transfer of the stocks held by Plaintiff’s Plaintiff’s actual possession, the amount of tax to be paid under his/her own name may not be deemed as having attempted to evade capital gains tax itself as the principal tax, so long as it cannot be deemed as having attempted to evade capital gains tax itself.

C) Sub-determination

Ultimately, the part of the under-reported penalty tax (10%) within the scope of the amount subject to the application of the general under-reported penalty tax rate (10%) in relation to the penalty tax for failure to report the transfer income tax among the dispositions of this case (the imposition disposition No. 1 in the attached Table 1), i.e., the part of the under-reported penalty tax within the scope of the amount subject to the application of the general under-reported penalty tax rate (29,178,860), and the exceeding portion shall be lawful, and the exceeding portion shall be revoked as it is unlawful (the legitimate tax amount

5. Conclusion

Therefore, the claim for revocation of the corrected part of the lawsuit in this case is dismissed as unlawful. The remaining claims of the plaintiffs are accepted within the scope of the above recognition, and the remaining part is dismissed as it is without merit. It is so decided as per Disposition.