Whether the shares held by the plaintiffs can be taxed as the constructive gift for title trust

Even if the trustee is a religious organization, he/she must prove that the purpose of tax avoidance is not suspected if it is ordinary by objective and acceptable evidence.

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

2015Guhap83382 Revocation of Disposition of Imposition of Gift Tax

△△△ et al.

O Head of the tax office and one other

The head of the OO head of the tax office on March 9, 2015, gift tax assessed against Plaintiff △△△△△, KRW 21,765,350 (Additional acid)

(3) The disposition of imposition of the tax office and the disposition of the head of △△ District Tax Office on April 1, 2015

The imposition of gift tax of KRW 6,005,920 (including additional tax) shall be revoked.

October 13, 2016

November 10, 2016

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

1. Details of the disposition;

가. 주식회사 ㅁㅁ(이하 '소외 회사'라 한다)는 1990. 1. 15. 개업하여 일반서적 및 교과서 출판업 등을 영위한 회사이다.

B. Aa, who served as the representative director of the non-party company, transferred 60,000 shares of the non-party company held on November 15, 2004 (hereinafter referred to as "share shares") to the officers and employees of the non-party company including the plaintiffs, and completed the transfer.

C. The Defendants applied Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) to the Plaintiffs on March 9, 2015, on the grounds that the Defendants received title trust from bB, the actual owner of the non-party company’s shares. Defendant OO head of the tax office decided and notified the Plaintiff △△△△△△△△△ of KRW 21,765,350 (including additional tax) of the gift tax, and Defendant ○○△△△△△△△ of KRW 6,005,920 (including additional tax) on April 1, 2015 (hereinafter referred to as the “instant disposition”). The Plaintiffs were dissatisfied with the instant disposition and were dismissed on April 20, 2015, but were dismissed on August 12, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 11, Eul evidence Nos. 1 and 11 (including additional numbers), and the purport of the whole pleadings

A. The plaintiffs' assertion

The Plaintiffs received title trust from ○○○○, which is not bbb individual, and ○○○, is exempt from taxation on customary profit-making business as a religious organization, so there is no room for recognition of the purpose of tax avoidance. Moreover, ○○○○ is not a matter of doubt as to whether a religious organization may become a shareholder of the non-party company that conducts profit-making business, the non-party company or its officers and employees may suffer disadvantages in case of the non-party company’s becoming a corporation operated by ○○○○○, and the new shares were trusted in trust to the Plaintiffs, who are new parties to the shares due to such reasons as concern that the non-party company or its officers and employees may suffer disadvantages, and the in

B. Relevant statutes

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

C. Determination

1) The Defendants, who is the title truster of the shares at issue, asserted BB as BB, but it is insufficient to recognize the above alleged facts solely on the grounds stated in the Evidence Nos. 2 through 17, 19, and 24 of the shares at issue. However, the Plaintiffs are the title truster of the shares at issue, and the Defendants also add the same content through a preparatory document dated October 10, 2016 as the grounds for disposition. Thus, if the addition of the above grounds for disposition is permitted, the instant disposition based on Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is lawful as long as it satisfies the requirements set forth in Article 45-2(2) below.

Therefore, the subject matter of a taxation disposition lawsuit is objective existence of the tax amount determined by the tax authority. As such, the tax authority may submit new data that can support the legitimacy of the tax base or tax amount recognized in the pertinent disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, and it does not necessarily mean that the data at the time of the disposition should be determined whether the disposition is legitimate or only the reasons for the disposition at the time of the disposition can be asserted (see, e.g., Supreme Court Decision 2009Du1617, Jan. 27, 2011). According to the aforementioned circumstances, the reason added to the original reason for the disposition in this case and the ancillary reason for the disposition in question are different only from the legal evaluation of whether the actual share ownership of the pertinent shares in question should be deemed BB or ○○○○○, and thus, it does not change the basic facts that constitute the basis for taxation (see, e.g., Supreme Court Decision 2009Du1617, Feb. 19, 197).

2) As long as the fact that the title trust had no objective of tax avoidance exists, the claimant bears the burden of proving that there was no objective of tax avoidance. The nominal owner who bears the burden of proving that there was an obvious objective of tax avoidance, which is irrelevant to the tax avoidance in the title trust, and that there was no tax avoidance in the future at the time of the title trust or in the evidence proving that there was no tax evasion in the future, shall be proved to the extent that it would not have any doubt (see, e.g., Supreme Court Decision 2007Du17175, Sept. 8, 201). Under Article 3(1) and (2) of the former Corporate Tax Act (amended by Act No. 8141, Dec. 306), it appears that the Plaintiffs’ assertion that the ○○○○○○○○○○○○○○○○○○’s shares were not subject to corporate tax exemption on the income earned from profit-making business, and thus, it appears that the Plaintiffs’ new 300 billion won shares were not subject to tax exemption under the Plaintiffs’ new 2000.

3. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.