Early High Court Decision 2013J 4637 (No. 11, 2014)

propriety of the claim claim statement with no tax avoidance purpose in the title trust of the shares at issue

청구인들은 쟁점주식이 ㅇㅇㅇ에 의한 명의도용 또는 조세회피목적이 없는 명의신탁이라는 사실을 객관적으로 입증하지 못하고 있는 점 ㅇㅇㅇ이 향후 과점주주에 따른 제2차 납세의무를 회피할 수 있는 개연성이 있는 점 등에 비추어 쟁점주식을 조세회피목적에 의한 명의신탁으로 보아 청구인들에게 증여세를 과세한 처분은 달리 잘못이 없음

Inheritance Tax and Gift Tax Act (Article 45-2)

Seoul Administrative Court 2015Guhap5424 (O7.01)

New***2

The portion arising between CC and the Director of the Guro Tax Office shall be CC, MaximumB

The part arising between the Director of the District Tax Office and the defendant Jamb shall each be borne by the plaintiff most.

Cheong-gu Office

The facts stated to the effect that the seal of the NewA and the least BB was affixed, and that the JungG was above.

Crimes committed by forging and using each share acquisition agreement of March 4, 2010 (see Evidence A 5-1, 2)

In fact, on March 21, 2016, a summary order of a fine of KRW 5 million was issued (In Incheon District Court 2016 High Court).

425 No. 4425, hereinafter referred to as "the summary order of this case"), and the summary order of this case is a formal trial office by regularG.

The facts confirmed on April 6, 2016 by the failure of the Gu are recognized.

C) However, the statements set forth in sub-paragraphs (2) and (3) may be known by adding to the whole purport of the pleading.

In light of the following circumstances, the above fact of recognition alone for the shares of the instant company

The preparation of a written contract for respective acquisition of shares on March 4, 2010, and the entry of a change in title is the nominal owner of the shares.

GG, regardless of the intent of the Plaintiff LB, was made by the unilateral act of the Plaintiff, the actual owner

It is difficult to see that it is, and there is no other evidence to acknowledge it, and it is rather reasonable to us with the above plaintiffs.

Plaintiff NewA, Plaintiff LA, and Plaintiff LB in 2010 by making timely agreements or communications

the transfer of ownership to the shares of the Company. (The title of this title shall be deemed to have been changed by

at the time of entry of a change of holders, even if the change of holders was unilaterally made, then the transaction and name of shares in 2010 thereafter.

The imposition of each of the instant claims by the Plaintiff New A and the Plaintiff LB, which appears to have been sufficiently known of the proposal;

Taking into account the circumstances that did not raise any objection prior to the disposition, Plaintiffs NewA, and the maximum of the Plaintiff

At least the above plaintiffs become aware of stock transactions and change of holders in 2010 between the iron and JungG.

The title trust has become effective by ratifications. Plaintiffs NewA and the maximum number of Plaintiffs

This part of the BB’s argument is without merit.

(1) In the course of the investigation by the Central Regional Tax Office, Plaintiff LB shall have the title of the MediationCC.

800 shares of the Company of this case, including shares 2,350 shares of the Company of this case

All of them made a statement to the effect that shares owned by JungG are entrusted in the name of the company.

(2) In the course of the investigation by the Central Regional Tax Office, Plaintiff New A, in the course of the investigation by the Central Regional Tax Office,

A representative director on the register has been appointed, and he/she has affixed his/her seal to the company of this case and around August 2012.

Any particular measure such as accusation against the police, etc. although he/she became aware of the fact that he/she became a shareholder of the company

A statement to the effect that “not taken” was made.

(3) Prior to the imposition of each of the instant dispositions, the Plaintiffs are entitled to the instant disposition.

(1) The acquisition of shares of the Company, dated March 4, 2010, of each share acquisition agreement

At the time of the filing of the instant lawsuit, the YG does not take any action, and the fabrication and the investigation of the private document.

The Plaintiffs complained against the charge of the exercise of documents. The time when the Plaintiffs complained against JungG, Plaintiffs NewA and Plaintiff LA, respectively.

BB It is recognized that JungG changed its entry without permission of the above plaintiffs around 2010.

Considering that each of the 2010s may avoid the burden of gift tax belonging to each of the 2010 Plaintiffs

The authenticity of a complaint is doubtful.

(4) The circumstances described in paragraph (3) of the aforesaid paragraph and the Jungg imposed upon the Plaintiff Shin and the Plaintiff lowestB.

In light of the fact that a person jointly and severally liable for the gift tax on March 4, 2010, the above understanding is given.

Accordingly, there is a high possibility that the statements in the investigation stage between the plaintiffs and the JungG have been distorted;

JungG appears to have not claimed formal trial against the instant summary order.

(5) The transfer of title to the shares of the instant company, which was made around 2010, is made with the Plaintiff New A.

Inasmuch as it does not seem to have been made regardless of the intent of the least BB, the summary of this case

The fact-finding of the Food Order is difficult to be employed (as seen in the foregoing, Plaintiff New A and Plaintiff LB).

No objection is raised against the fact that the stock transaction and change of holders were known in 2010.

If it is deemed that the entrustment has become effective, it shall not be inconsistent with the factual judgment of the summary order of this case.

c).

2) Whether there was an objective of tax avoidance

A) The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is the tax association using the title trust system.

The substance over form principle to the purport that tax justice is realized by effectively preventing the act of avoidance.

Since exceptions are recognized, title trust is made for reasons other than the tax avoidance purpose.

If it is recognized that it was accompanied by the title trust, and it is only a minor reduction of taxes.

Therefore, it cannot be readily concluded that such title trust had the purpose of tax avoidance. However, the above cannot be readily concluded.

In light of the legislative intent, the purpose of title trust does not include the purpose of tax avoidance.

(1) In the case of paragraph (1) of the same Article, it is not possible to apply the proviso to paragraph (1) of the same Article.

In addition, if the intent of tax avoidance is deemed to exist, it cannot be said that there is no purpose of tax avoidance.

C. In addition, the burden of proof as to the absence of the purpose of tax avoidance is the title of assertion.

Persons (see, e.g., Supreme Court Decision 2013Du9779, Oct. 17, 2013). Furthermore, the aforementioned provisions are applicable.

The nominal owner who bears the burden of proof is deemed to have no purpose of tax avoidance in the title trust.

to the extent that there was an obvious purpose of tax avoidance, and at the time of title trust or in the future,

there is no tax to be avoided by objective and objective evidence

He/she shall prove to the extent that he/she does not raise any doubt (Supreme Court Decision 2004Du11220 Decided September 22, 2006).

[Judgment] Whether there was such a tax avoidance purpose or not shall be determined as of the time of title trust of the shares

In addition, it is necessary to determine whether the above taxes have been evaded or not.

v. (See Supreme Court Decision 2012Du546 decided Nov. 28, 2013).

B) However, the testimony of the witness JungG and the testimony of the Plaintiff NewA and the Plaintiff ChoiB

sole purpose is to make clear the stock transaction and change of holders in 2010 that they are not superior to the tax avoidance.

Article 45 of the former Inheritance Tax and Gift Tax Act is not acceptable and there is no other evidence to acknowledge it.

-2 Pursuant to the main sentence of paragraph (2), stocks trading in 2010 and transfer for the purpose of tax avoidance have been conducted;

this part of the claim between the plaintiff New A and the plaintiff Choi B is not justified.

3) Sub-determination

Therefore, shares transaction and transfer transaction in 2010 are also governed by Article 45-2(1) of the former Inheritance Tax and Gift Tax Act.

applicable to the title trust deemed to be a gift, each of the plaintiffs New A and the plaintiffs Choi B

The imposition of gift tax on March 4, 2010 is legitimate.

3. Conclusion

The plaintiffs' claims of this case are dismissed in entirety and the costs of lawsuit are ruled against them.

The plaintiffs shall bear the burden as set forth in the Disposition.

○ Head of tax office

The certificate of gift issued on December 24, 2009 by the Director of the Korea Tax Office against Plaintiff NewA on May 13, 2014

No. 2,011,698 (including additional taxes) and No. 247,466,764 of the gift tax on March 4, 2010

b) The gift made on September 5, 2007 by the director of the Guro Tax Office on May 12, 2014 to Plaintiff Cho Jae-CC

Gift tax 1,611,938 won (including additional taxes) and gift tax 33,128,274 won (additional taxes) on April 28, 2008

(B) The certificate of April 28, 2008, issued by the Director of the Diplomatic Tax Office and the Director of the Diplomatic Tax Office on May 12, 2014 against Plaintiff LB.

Gift Tax 33,937,784 won (including additional tax) and gift tax 42,020,971 won (including additional tax) on March 4, 2010

Each disposition of imposition of tax shall be revoked.

November 22, 2016

December 06, 2016

1. All of the plaintiffs' claims are dismissed.

2. Of the costs of the lawsuit, the part arising between the Plaintiff New A and the Defendant-U.S. Tax Office is as follows:

1. Details of the disposition and the procedure of the preceding trial;

(a) Details on changes in the ownership of shares of the Round Co., Ltd. (hereinafter referred to as the “instant company”);

1) The statement of the change in stocks of the instant company is indicated as follows.

① On September 5, 2007, Plaintiff CC subscribed 500 new shares of the instant company, and acquired 4,050 shares of the instant company from EE on April 28, 2008, and 1,900 shares of the instant company from KimF, respectively. On March 4, 2010, Plaintiff CC transferred 4,100 shares of the instant company and 2,350 shares of the instant company to Plaintiff NA, respectively.

② On December 24, 2009, Plaintiff New Shares 500 of the instant Company was acquired by Plaintiff New Shares 8,600, and Plaintiff CC respectively from Plaintiff 5,000, respectively. On March 4, 2010, Plaintiff 4,100 shares of the instant Company were transferred by Plaintiff 5,00 shares, and around February 201, the entire shares were transferred by Plaintiff 5,00 shares.

③ On April 28, 2008, Plaintiff LB acquired 6,450 shares of the instant company from EE, and on March 4, 2010, Plaintiff CCC acquired 2,350 shares of the instant company from Plaintiff CCC, and transferred the entire shares to Jung, around March 2011.

2) The details of changes in stock ownership based on the detailed statement of changes in stock ownership of the instant company are as stated in the attached Form.

(b) Imposition of gift tax;

1) As a result of an investigation of stock change with respect to the instant company from September 24, 2013 to February 18, 2014, the director of the Central Regional Tax Office: (a) deemed that the actual shareholders of the instant company were Y and the Plaintiffs were title trust of the shares of the instant company; and (b) notified the Defendants of taxation data.

2) On May 12, 2014, the head of the Gu-ro Tax Office rendered a decision and notice on ① gift tax of KRW 1,611,930 (including additional tax) on September 5, 2007 and ② gift tax of KRW 33,128,270 (including additional tax) on April 28, 2008.

3) On May 13, 2014, the Defendant-General of the Korea Tax Office determined and notified the Plaintiff-A of KRW 2,011,698 (including additional taxes) of the gift tax on December 24, 2009, and KRW 247,466,760 (including additional taxes) of the gift tax on March 4, 2010.

4) On May 12, 2014, the Defendant sericultural Director of the Tax Office rendered a decision and notification of the gift tax amounting to KRW 33,937,780 (including additional tax) on April 28, 2008, and KRW 42,020,970 (including additional tax) on March 4, 2010, respectively (hereinafter “each disposition of imposition of gift tax on the Plaintiffs”).

(c) Procedures of the previous trial;

The Plaintiffs were dissatisfied with each of the instant dispositions and filed an appeal on August 11, 2014, but the Tax Tribunal rendered a decision to dismiss the Plaintiffs’ appeal on December 1, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 1, 4, 5, and 6 (including relevant numbers), the purport of the whole pleadings

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

A. The plaintiffs' assertion

1) The acquisition of shares by Plaintiff ChoCC and Plaintiff LBB on April 28, 2008, the acquisition of new shares by Plaintiff ChoCC on September 5, 2007, the acquisition of new shares by Plaintiff ChoCC on December 24, 2009, and the acquisition of new shares by Plaintiff ShinA on December 24, 2009 (hereinafter referred to as “stock transaction and transfer of shares from 2007 to 2009”) do not constitute a title trust, since the Plaintiffs actually acquired the shares of the instant company. Even if shares transaction and transfer of shares from 2007 to 2009 were under a title trust, there was no purpose of tax avoidance against the Plaintiffs.

2) The acquisition of the Plaintiff’s shares as of March 4, 2010 and the acquisition of the Plaintiff’s shares as of March 4, 2010 by Plaintiff LB (hereinafter “2010 shares transaction and transfer”) are not nominal trust, as the Plaintiff’s transfer of ownership of the instant shares without permission, regardless of the intent of Plaintiff LA and the Plaintiff’s tear. Even if the transfer of ownership in 2010 is a title trust, it was made for the instant company to obtain a loan guarantee from the Korea Credit Guarantee Fund, regardless of tax avoidance. In fact, there was no tax to be avoided due to the said transfer of ownership transaction and transfer of ownership in 2010.

B. Relevant statutes

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

C. Determination on the imposition of gift tax on stock transactions and transfer of holders from 2007 to 2009

1) Whether a title trust is held

Unless special circumstances exist, such as that if a tax authority received a written confirmation from a taxpayer that a certain part of a transaction is illegal in the course of conducting a tax investigation, such written confirmation may not be readily denied solely for the evidence of such written confirmation, barring special circumstances where it is difficult for the tax authority to take the written confirmation as evidence of the specific fact due to a lack of the content thereof, etc. (see Supreme Court Decision 2001Du2560, Dec. 6, 2002).

In full view of the statements in Eul evidence Nos. 1, 2, and 3, and the purport of testimony and oral argument of Jung-G, Plaintiff 2 stated to the effect that, in the course of the investigation by the Central Tax Office on Jan. 18, 2014, Plaintiff 2 did not acquire 6,450 shares of the company of this case from this EE, and that, in the process of the investigation by the Central Tax Office on Apr. 28, 2008, Plaintiff 2 stated that, in the process of the investigation by the Central Tax Office on Nov. 10, 2013, Plaintiff 2 stated that Jung-G was entrusted with shares owned by Jung-G, and that, in fact, Plaintiff 2 was the actual owner of shares of the company of this case under the name of Plaintiff 1B and Plaintiff 20% of the company of this case, Plaintiff 5G shares acquired the company of this case from 00 to 100% of the new shares of this case, Plaintiff 5G shares acquired the new shares of the company of this case.

Comprehensively taking account of these facts, the transaction and transfer of shares from 2007 to 2009 shall be deemed based on the title trust between JungG and the plaintiffs, who are 100% owners of the shares of the company of this case. The facts stated in subparagraphs 4-1 and 2, and the facts alleged by the plaintiff are insufficient to reverse the recognition, and there is no other counter-proof. The plaintiffs' assertion in this part is without merit.

2) Whether there was an objective of tax avoidance

According to the main text of Article 45-2(2) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; Act No. 9916, Jan. 1, 2010; Act No. 9916, Jan. 1, 2010) with respect to the gift tax attributed to year 2007; and with respect to the gift tax attributed to year 2008 and 2009, where a transfer of shares is made under another person’s name and the name of the actual owner fails to transfer the ownership under another person’s name, the purpose of tax evasion is presumed to exist. The Plaintiffs did not prove that there was no purpose of tax evasion from 2007 to 2009. Therefore, it is presumed that there was a purpose of tax avoidance. The Plaintiffs’ assertion

3) Sub-determination

Therefore, from 2007 to 2009, stock transaction and transfer constitutes a title trust deemed to be a gift pursuant to Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007 with respect to the gift tax reverted to the year 2007, and with respect to the gift tax reverted to year 2008 and 2009, it is legitimate to impose each gift tax on Plaintiff Shin-A, impose the gift tax on Plaintiff Shin-A on December 24, 2009, impose the gift tax on April 28, 2008 on Plaintiff ChoiB, and impose the gift tax on April 28, 2008.

D. Determination on the imposition of gift tax on stock trading and transfer of ownership in 2010

1) Whether a title trust was made regardless of the intent of the Plaintiff New A and the Plaintiff LBB) or whether the pertinent provision under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011; hereinafter “former Inheritance Tax and Gift Tax Act”) applies in cases where the actual owner and the nominal owner enter into a registration, etc. in the future by entering into an agreement or communication with the nominal owner, and the registration, etc. in the name of the nominal owner is necessary. In such cases, the tax authority can only prove that the actual owner is different from the nominal owner, regardless of the intent of the nominal owner, and the burden of proving that the registration, etc. of the nominal owner was made by the unilateral act of the actual owner should be the nominal owner regardless of the intent of the nominal owner (see Supreme Court Decision 2007Du15780, Feb. 14, 2008). Meanwhile, in a criminal case recognized in a judgment related to the relevant criminal case, the submission of evidence or administrative records cannot be rejected in the judgment of 197.

[Reference]

B) Evidence Nos. 5-1, 2, and 6-1, 5-2, and 6, and the testimony and pleading of the witness JungG

In full view of the purport of the body, the Plaintiffs, on February 27, 2015, counterfeited the Private Document and the display of the Private Document.

The facts allegedly allegedly accused of the violation of this Act; and in this Court, Jung shall have the Plaintiff’s shares 8,600 of the Company’s shares to the Plaintiff.

The transfer of shares is made by Plaintiff New A while preparing a share acquisition agreement on March 4, 2010.

Without permission, the Plaintiff’s seal was affixed to the instant company, which was kept in custody of the instant company.

C. 6,450 shares of the instant company in the name of “Mediation,” Plaintiff 4,100 shares, and Plaintiff Maximum

The transfer of 2,350 shares to the iron is made up of the share acquisition agreement of March 4, 2010 and is made up of

without permission of the High Court, Plaintiff CC affixed a seal affixed to the instant company without permission of the High Court.

재판장 판사 호QQ

Justices Lee W

Judges Lee O-O