Whether it constitutes deemed donation of title trust

The fact that the registration, etc. was made unilaterally by the actual owner regardless of the intent of the nominal owner should be demonstrated by the party asserting it, and that there was an obvious purpose irrelevant to the avoidance of tax in the stock title trust, or that there was no tax to be evaded at the time of the title trust, or that there was no tax to be evaded at the time of the title trust.

Article 45-2 of the Inheritance Tax and Gift Tax Act

2016Guhap10339 Revocation of Disposition of Imposition of Gift Tax

AAA 2

bbb is the d'd' as the d'a's wife, and c'c is the d'd'.

The husband of e, a father of e, is his father.

B. At the time of incorporation of the instant company, the total number of outstanding shares is 5,000 shares, and the Plaintiff Aa 2,600 shares,

cc and e acquire 1,200 shares by each of them as shareholders of the corporation of this case.

Plaintiff Aa later, on June 10, 2009, was named Plaintiff CC from Plaintiff CC on June 10, 2009

1,200 shares are transferred to the shareholders of the company of this case by plaintiffs Aa (3.800 shares) and E (1,200 shares).

DD on September 21, 201, from Plaintiff Aa to 1,300 shares, from e, 200 shares.

and take over 1,00 shares from ee on the same day, and Plaintiff Aaa by taking over 1,00 shares from e.

(2,500 shares), dd (1,500 shares) and bb (1,00 shares) were shareholders of the corporation of this case.

The details of the change of shareholders of the company of this case are as follows:

C. The Defendants, as the actual owners of the instant company, are DD as to the Plaintiffs.

I considered that the shares of the company were each nominal trust. Accordingly, the head of the North Daejeon District Tax Office on August 5, 2015

a.2,600 Shares of gift dated March 21, 2005 to A and the shares of gift dated June 10, 2009

the gift tax amount of KRW 84,367,680, January 15, 2016 to Plaintiff BB on September 21, 2011

For gift taxing KRW 90,570,010, and Defendant sericultural Director, August 19, 2015, with respect to Plaintiff CC

On March 21, 2005, the gift tax amount of KRW 1,607,340 was determined and notified respectively (hereinafter referred to as 'the gift tax').

Each disposition is referred to as "each disposition".

D. Accordingly, Plaintiff Aa is dissatisfied with this, and Plaintiff Cc, October 27, 2015, and Plaintiff C, January 22, 2016, respectively.

BBB requested on March 30, 2016 to each Tax Tribunal, but the Tax Tribunal made a request on May 2016.

2. For Plaintiff Aa and Plaintiff CC, each dismissal ruling against Plaintiff BB on June 8, 2016

AB made it.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, 20, 21, 22

include, hereinafter the same shall apply), Nos. 1, 2, and 3, the purport of the whole pleading

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiffs' assertion

The plaintiffs shall use each of the names of plaintiffs cc and bb for the purposes of utilizing the names of the plaintiffs cc and ddd.

(d) and between cc and bb as the shares of the corporation are transferred in its name.

There was no agreement on title trust of the shares of the Company. (2) dd at the time of the incorporation of the Company

from FFchemical Co., Ltd. (hereinafter referred to as "FFchemical") in bad credit standing.

(a) Aa, c and e on the ground that it is necessary for three shareholders required to establish a person.

shares of e in the name of e at the request of e after being named as shareholders of the corporation of this case.

Since part of the plaintiffs were transferred to bB, they are deemed to be the shareholders of the company of this case.

The purpose of this article is to say that there was no purpose of tax avoidance.

(b) Related statutes;

The term "former Inheritance Tax and Gift Tax Act, regardless of the time of amendment" as shown in the attached Table (hereinafter referred to as "the amended term").

(3).

C. Determination

1) As to the non-existence of a title trust agreement between Dd and Plaintiff CC, bB

Article 45-2 of the former Inheritance Tax and Gift Tax Act shall apply for registration, etc. of the transfer or exercise of rights.

In case where the actual owner and the nominal owner are different in property to be required, Article 14 of the Framework Act on National Taxes

Notwithstanding any provision, on the date of registration, etc. as the nominal owner, the actual owner donates to the nominal owner.

Any presumption or donation shall be deemed to have been made, and the registration, etc. shall be deemed to have been made by the nominal owner.

(2) If the provisions of the above Act are not applicable to a person who has been unilaterally

but in this case the registration shall be made by the actual owner regardless of the will of the person under whose name the registration is made.

The fact that a payment has been made should be proved by the party asserting it (Supreme Court Decision 11 November 2004).

12. See, e.g., Supreme Court Decision 2004Du7009.

However, DD unilaterally without the agreement on title trust with Plaintiff CC, B, and B.

written evidence Nos. 8 and 9, showing that they were shareholders of the company of this case;

Witness GG testimony: Party A’s partial entry, Party A’s Evidence Nos. 6, 24, and Party B’s Evidence Nos. 4, 5, 6, 7, 15

the following circumstances known in full view of the respective descriptions of evidence and the purport of the entire pleading:

In other words, the statements in Gap evidence Nos. 3, 4, 5, 7 through 19, 23 and 25 are not sufficient to believe.

Therefore, this part of the plaintiffs' assertion is without merit.

① Plaintiff CC was the actual owner of the instant company’s act of fraud on March 21, 2005.

e, its wife and ddd’’’’’ or e, its wife and d’’’ or d’’’, was the shareholder of the instant company.

Meanwhile, from March 21, 2005 to March 21, 2005, it became a shareholder of the instant company.

bbbdo d'D' and became a shareholder of the instant company from September 21, 201 as the Do d'd'

Plaintiff Aa, who is his husband and dd, is a partner of the instant company, as the promoters of the instant company.

Meanwhile, from March 21, 2005 to March 21, 2005, the Plaintiff is a shareholder of the instant company.

c. In the light of the relationship between cc, bb and dd, e, aa, the plaintiff c, c.

dd in respect of the acquisition of the shares of the corporation of this case in its name;

It is reasonable to see that e or a was derived from e or from e, and at least dd cCC, bb.

It is difficult to view that the shareholder was unilaterally registered as a shareholder without any agreement.

② As to the apartment house 1, 407, 204, located in the Seoul Special Metropolitan City Gwangjin-gu Co-ownership of the Plaintiff CC and e Co-ownership

6. 17. The debtor, the plaintiff Aa, the collateral security company, the FF chemical and the ○○ Petroleum Chemical Co., Ltd.;

The establishment registration of a mortgage consisting of KRW 200 million with the maximum debt amount e

After the completion of the contract, on June 22, 2005, on the grounds of overlapping contract acceptance as of June 13, 2005

The registration of the change of the right to collateral security added to the company as the debtor was completed, and thereafter on January 14, 2009.

On January 13, 2009, the registration of cancellation of the registration of establishment of a mortgage was completed on the ground of termination.

If so, the company of this case with respect to the above apartment at any latest as the plaintiff CC shall be liable to the company.

When registration of change of right to collateral security has been completed, the existence and person of the company in this case

It is reasonable to view that the company came to know about the relationship between the new company and the instant company.

③ Plaintiff CC shall thereafter serve as the director or auditor of the instant company until June 11, 2009.

e, in particular its wife, has been registered. e, in particular, has been shares of Plaintiff CC to the Plaintiff Aaa.

Even after the transfer, e transfers the shares in its name to Plaintiff BB on September 2011.

21. Until March 31, 2013, the instant Congress, as well as the shareholders of the instant company, continued to have been the shareholders of the instant company.

was registered as a director or auditor of the company.

④ On June 10, 2009, Plaintiff Aaa on June 10, 2009, the shares of the instant company in the name of Plaintiff CC.

the transfer income tax base return and payment statement in the name of Plaintiff CC on June 2009.

18. The tax base of securities transaction tax was submitted to the head of Sungdong Tax Office, and the tax base return for securities transaction tax was filed on the same day.

Plaintiff CC was submitted to the Secretary (On the other hand, Plaintiff CC in Daejeon, the domicile of ddd Co., Ltd.

As the relevant tax was paid instead, there was no agreement on title trust between Plaintiff CC and DD.

dd', however, its shares to the Plaintiff CC.

Since the above assertion is based on the title trust, it cannot be accepted).

⑤ The Plaintiff BB does not indicate the purpose of the use of the Plaintiff BBD d's machine.

A request for the issuance of a certificate of personal seal impression was made. However, a certificate of personal seal impression is affixed.

The identity of the person engaged in transactions is proved by possessing the seal impression together with the seal impression and simultaneously the identity of the person engaged in transactions.

In respect of rights and duties of individuals as data confirming that an excessive transaction is based upon the will of the actor.

in light of the extremely important functions of ordinary people in transactions, such as those used in such activities;

Myeon, even if the plaintiff bB and DD are in high order, the plaintiff bB knew of the purpose of use.

Doing that the certificate of his personal seal impression has been drawn up to dd' without any exception.

shall not obtain any such approval.

2) As to the non-existence of purpose of tax avoidance

The legislative intent of Article 45-2 of the former Inheritance Tax and Gift Tax Act is to use the title trust system.

The substance over form principle to the purport that the tax justice is realized by effectively preventing tax avoidance activities;

Since the exception is recognized, the purpose of tax avoidance is included in the purpose of title trust.

(1) The proviso to paragraph (1) of the same Article shall apply only if the purpose of the tax avoidance is not applicable.

The burden of proving that the taxpayer did not have the burden of proof is the nominal person who asserts it.

to prove that there was no other purpose than the purpose of tax avoidance.

or by other means, but the nominal owner who bears the burden of proof shall be entitled to prove the burden of proof.

in the trust to the extent that the trust does not have the purpose of tax avoidance;

It was objective that there was no tax to be avoided at the time of title trust or in the future.

proof that the ordinary person is not suspected of being suspected, with evidence that may be received by such person;

the nominal owner for the purpose of tax avoidance. In addition, as long as the nominal owner has the purpose of tax avoidance, the nominal owner.

Only with no purpose, the application of the provision on presumption of gift cannot be avoided (Supreme Court Decision 203 March 28, 2013).

See Supreme Court Decision 2010Du24968, supra.

B. We examine the plaintiffs as shareholders of the company of this case, and there was no purpose of tax avoidance.

the testimony of the witness GG as shown in Eul Nos. 8 and 9, and the testimony of the witness GG, as shown in the point of

24 Evidence 24, Eul evidence 15 and the purport of the whole pleadings are as follows:

In light of the circumstances, only the statements in Gap evidence Nos. 3, 4, 5, 7 through 18, 23, and 25 are written.

and there is no other evidence to prove otherwise that d has no purpose of tax avoidance.

C. Therefore, the plaintiffs' assertion on this part is without merit.

① The Company and D are separate holders of rights, and, in the event of a corporation, the shareholders are due.

One responsibility is only the establishment of the company of this case even if it is alleged by the plaintiffs.

The request for Fchemmmmar, which is the business partner, is already satisfied, and in addition, the corporation of this case

d even a person with bad credit standing as a shareholder is a separate issue as to who is eligible to become a shareholder.

DD at the time of the incorporation of the Company, in that it did not have any problem.

shareholders of any other person, such as the Plaintiff Aaa, Cc and e, in addition to D and not as shareholders, as shareholders.

It is difficult to see that it was excluded from the purpose of tax avoidance.

② In addition, the Plaintiffs were the instant company, beyond the bad credit standing around September 201, 201.

one of the shareholders of the corporation has been transferred in the name of ddd." In the event that the claim is made, the party shall be entitled to the claim.

Inasmuch as the grounds for 'the bad credit standing of ddd' which caused the initial title trust have ceased to exist, this g, g, even though all shares of dd' should be held in the name of d', the plaintiff Aa, bb still

In light of the fact that the corporation is a shareholder of the corporation of this case, dd additional shares of the corporation of this case

Fchemical request because the trust was not for the purpose of tax avoidance, but for the bad credit standing of ddd'di.

It cannot be deemed that the title trust was inevitable.

(3) Shares under Article 288 of the former Commercial Act (amended by Act No. 6488 of July 24, 2001)

In the incorporation of a company, there must be three or more promoters.

B. Since July 24, 2001, as the Commercial Act was amended, any number of promoters necessary for the incorporation of the company.

In addition to the absence of such restrictions, ddd in respect of the shares of the Company of this case by Plaintiffs Aaa, DD

If a transfer is made under the name of e and e, the application of the amended Commercial Act is made on March 21, 2005.

Since about 3 years and 8 months have passed, ddd' is difficult to say that D's amendment of the Commercial Code was too different.

At the same time, according to the articles of incorporation of the company of this case, which was made on March 15, 2005, the promoters are not three, but "the plaintiff."

A and e are described only by two persons (Evidence A(6)(1)), more than

(r).

④ The earned surplus of the instant company shall be approximately KRW 1.65 billion around December 2, 2015, in excess of KRW 1.65 billion.

the title trust of ddd may be known, e.g., the amount of dividend income that may be incurred in the future.

There was a possibility to avoid the application of tax rates.

3. Conclusion

The plaintiffs' claims against the defendants are dismissed on the grounds that they are without merit.

Daejeon Tax Office et al. 1

On August 5, 2015, the head of the Daejeon District Tax Office KRW 84,367,680,00, which was paid to Plaintiff Aa by the Director of the Daejeon Tax Office.

Disposition of imposition, imposition of KRW 90,570,010 on Plaintiff BB on January 15, 2016, and imposition of KRW 90,570,010 on gift tax; and

on August 19, 2015, part of KRW 1,607,340 of the gift tax imposed on Plaintiff CC on Plaintiff CC

Each disposition shall be revoked.

February 23, 2017

March 30, 2017

1. The plaintiffs' claims against the defendants are all dismissed. 2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

1. Details of the disposition;

A. The ○○○○○ Co., Ltd. (hereinafter referred to as the “instant company”) is an emergency law established on March 21, 2005. The actual owner of the instant company is dd, and the Plaintiff Aa is d's d', respectively; and