The burden of proving that there was no purpose of tax avoidance in the regulation on the constructive gift of nominal trust shares is the nominal holder who asserts it.

When applying the constructive gift of nominal trust shares, the nominal owner claiming that there was no purpose of tax avoidance should prove that there is no intention of tax avoidance with that of tax avoidance to the extent that there is no objective of tax avoidance.

Donation of title trust property under Article 41-2 of the Inheritance Tax and Gift Tax Act

2015Guhap24735 Revocation of Disposition of Imposition of Gift Tax

HongA

00. Head of tax office

September 2, 2016

September 30, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing gift tax of KRW 00,00,000 on the Plaintiff on October 0, 200 shall be revoked.

1. Details of the disposition;

A. The plaintiff is the representative director and the largest shareholder of the ○○○ corporation that runs the business of selling and transporting petrochemicals, and AAAA corporation (hereinafter "the company of this case") is a company that carries on the business of selling and selling oil, and the United StatesA is a person who was the auditor of the company of this case and is a relative with the plaintiff.

B. The director of the Seoul Regional Tax Office conducted a tax investigation with respect to the instant company from August 22, 2013 to January 24, 2014, and confirmed that the Plaintiff was the nominal shares of the Plaintiff and notified the Defendant of the fact that the sum of 00,000 shares (hereinafter “instant shares”) acquired on March 2, 200 at the time of incorporation of the instant company under the name of the United StatesA and 00,000 shares acquired on October 0, 200 with subscription to new shares (hereinafter “instant shares”) acquired on March 2, 200.

C. On October 0, 200, the Defendant: (a) deemed that the Plaintiff donated the instant shares to the United StatesA; and (b) designated the Plaintiff as a joint and several taxpayer, imposed and notified the Plaintiff of KRW 00,000,000 of gift tax reverted to year 200 (hereinafter “instant disposition”).

D. The Plaintiff filed a tax appeal on October 0, 200 upon filing an objection, but the Tax Tribunal has filed a claim for the tax appeal on the same date.

On October 0, 200, the decision of dismissal was made.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff needs to increase sales through the transaction with the company of this case, and this was the above.

In addition, the Plaintiff had to acquire the instant shares under the name of the Plaintiff because the Plaintiff was forced to acquire the instant shares because the Plaintiff could have suffered economic loss from the oil refinery, by seriously checking the new-product petroleum importers, such as the instant company. Furthermore, the Plaintiff was subject to the tax rate of 38%, which is the highest section of the global income tax, and paid the income tax that amounts to KRW 100 million from the annual amount of KRW 50 million. However, the estimated tax amount due to the dividend income is not sufficient for the Plaintiff to pay the tax.

As such, the Plaintiff did not have the purpose of tax avoidance in title trust of the shares of this case, and therefore, the Plaintiff

The disposition of this case on which gift tax is imposed shall be revoked in an unlawful manner by deeming that high-priced stocks are donated.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 43 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998)

The legislative intent of Paragraph (1) is to recognize an exception to the principle of substantial taxation to the purport that effectively prevent the act of tax avoidance using the title trust system and realize the tax justice. As such, the proviso of the same Article is applicable only where the purpose of the title trust is not included in the purpose of the tax avoidance, and in such a case, the burden of proving that there was no other purpose of the tax avoidance. Therefore, it may be proven by means of proving that there was no other purpose of the tax avoidance, not the purpose of the tax avoidance. However, the nominal owner who bears the burden of proving the burden of proof has a clear purpose of tax avoidance to the extent that it is recognized that there was no objective of the tax avoidance in the title trust, which is irrelevant to the tax avoidance, and that there was no tax avoidance in the future at the time of the title trust or in the future, to the extent that it is not a doubt if there was an ordinary evidence (see Supreme Court Decision 2004Du11220, Sept.

In full view of the contents of evidence Nos. 4 to 13 and the purport of the whole pleadings, oil refining business

From October 190 to October 200, the body controlled the entry of oil reservoir into the imported petroleum transportation vehicle from around 1900 to around 200, and the oil refining company may recognize that there was a change in the payment method against the oil station to lease the oil tank in advance or to replace its customers. However, there was no objective evidence as to the fact that there was no disadvantage against the act of supporting the imported petroleum transportation company, not the employees of the oil refining company, but the importing petroleum company. The shares of this case are non-listed shares and the shareholders composition is not disclosed, but the oil refining company cannot be easily known, and the plaintiff continued to maintain the transaction with the company of this case, and it is unclear that the plaintiff was disadvantaged by the oil refining company. Since the plaintiff had no tax evasion between 200 and 200 by title trust of the shares of this case, the plaintiff was subject to the highest income tax rate, the plaintiff did not have any reason to recognize the tax evasion purpose of the plaintiff's first transfer of shares after the change in the name of the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as there is no reasonable ground.

Relevant statutes

Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002)

(1) In case where the actual owner and the nominal owner are different, notwithstanding Article 14 of the Framework Act on National Taxes, the value of the relevant property shall be deemed to have been donated from the actual owner on the date when it is registered, etc. as the nominal owner on the date when the actual owner and the nominal owner are registered, in respect of the property (excluding the land and buildings; hereafter in this Article, the same shall apply), which requires a registration, etc. in the transfer or exercise

1. Where assets are registered, etc. in the name of another person without the purpose of tax avoidance;

2. Where converting into the title of actual owner during the period not later than December 31, 1998 (hereafter in this Article, referred to as the “period of grace”) for the stocks, etc. which have been entered in the register of stockholders or the register of members or whose titles have been transferred under the name of another person pursuant to a trust or agreement made before January 1, 1997 from among the stocks and equity shares (hereafter in this Article, referred to as the “stocks, etc.”): Provided, That the same shall not apply to the case where converting into the titles of a person in a special relationship with the stockholders (including investors) of the corporation which has issued the stocks, etc.

(2) Where a property has been registered in the name of another person as well as shares during a grace period under paragraph (1) 2.

If the name of the actual owner is not converted into the name of the actual owner, it is presumed that the purpose of tax avoidance exists.

section 3.

(3) The provisions of paragraph (1) 2 shall apply to a person who converts the stocks to a title as actual owner during a grace period.

the head office or principal office of the invested corporation or the head office of the invested corporation

the submission under the conditions as prescribed by the Presidential Decree shall apply only to the submission.

(4) The provisions of paragraph (1) shall register the fact that is a trust property under the Trust Business Act or the Securities Investment Trust Business Act.

case of registration, etc. under the name of a legal representative or administrator by a nonresident, the application thereof

subsection (b) of this section.

(5) For the purpose of paragraphs (1) 1 and (2), the term “tax” means the national tax as provided in subparagraphs 1 and 7 of Article 2 of the Framework Act

Local taxes and customs duties provided for in the Customs Act.

(6) The scope of persons having special relation under paragraph (1) 2 shall be prescribed by the Presidential Decree.

Finally.