Cho-2015-west-1264 (2015.01)

Whether the actual owner of the shares in this case is the actual owner

Since it is difficult to view that the deceased was sufficiently proven that he trusted the shares of this case to the plaintiffs, the title truster of the shares of this case cannot be deemed as the deceased, the disposition of this case, which differs from this premise, is unlawful.

2015Guhap52913 Revocation of Disposition of Imposition of Gift Tax

KimAA 2

Head of Dongjak Tax Office et al.

October 28, 2016

November 18, 2016

1. On December 1, 2014, the imposition of gift tax of KRW 30,013,200, and KRW 11,003,300 on the gift tax for the year 2001 by the head of Dongjak Tax Office against the Plaintiff KimA and KRW 11,003,30 on the gift tax for the year 2001 by the Plaintiff KimB, and the imposition of KRW 11,003,30 on the gift tax for the year 2001 by the head of Chungcheongnam Tax Office against the Plaintiff KimCC shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On June 6, 2001, the Plaintiffs between South and North Korea were allocated D’s new shares (hereinafter “instant shares”) from capital increase issued by DD on June 6, 2001 (Plaintiff KimA: 10,000 shares, Plaintiff KimCC, and KimB: 5,00 shares, respectively).

B. The director of the Seoul Regional Tax Office conducted a tax investigation on D, etc. from September 15, 2014 to October 5, 2010 of the same year, and the network E (hereinafter “the deceased”) acquired D’s preemptive right, it is deemed that it lent new stocks under the Plaintiffs’ name and received allocation. The Defendants notified the Defendants that gift tax should be imposed on the Plaintiffs. The Defendants issued a disposition imposing each gift tax on the Plaintiffs on the date indicated on each disposal date in the attached Table pursuant to Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter “former Inheritance Tax and Gift Tax Act”).

C. On January 29, 2015, the Plaintiffs filed an appeal with the Tax Tribunal. On May 1, 2015, the Tax Tribunal decided to order the Plaintiffs to correct the tax base and tax amount by calculating the value per share of the instant shares from KRW 36,116 to KRW 15,719. Accordingly, the Defendants issued a decision to reduce the initial gift tax amount as stated in the attached Table among the attached Table to the Plaintiffs (hereinafter “decision to impose each gift tax remaining as stated in the column of the final tax amount”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 13, 14, Eul evidence Nos. 1 through 4 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The Plaintiff KimA acquired the instant shares after actually paying KRW 200 million of the share price, and the Plaintiff KimCC and KimB acquired part of the instant shares from Plaintiff KimA, thereby making the instant disposition on the premise that the instant shares were held in title trust by the deceased was unlawful.

2) Even if the title trust existed with respect to the instant shares, the title trust subject should be deemed as the aggregate of the members of the Korean society, and the instant disposition is unlawful on the grounds that the said title trust does not have any purpose of tax avoidance.

3) Although the instant shares are not deemed to have no average value per share of the estimated net value, the instant shares are deemed to have been evaluated as the valuation method of net asset value, the instant disposition that is deemed to have been unlawful.

B. Relevant statutes

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

C. Determination

1) Determination on the first argument

The main text of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act provides that “If the actual owner and the nominal owner are different from the property that requires the transfer or exercise of the right, the value of the property shall be deemed to have been donated to the actual owner on the day when the actual owner and the nominal owner are registered as the nominal owner, notwithstanding the provisions of Article 14 of the Framework Act on National Taxes.” The purport of the provision is that, in cases where the actual owner and the nominal owner are different from the actual owner, the nominal owner shall be deemed to have donated the property from the actual owner, which constitutes a taxation requirement which serves as the premise for applying the above provision, and the burden of proof thereof is borne by the tax authority (see, e.g., Supreme Court Decision 9Du7920, Sept. 18, 2001). The main text of Article 41-2(1)1 of the former Inheritance Tax and Gift Tax Act provides that, in light of the fact that the actual owner of the property acquired under another’s name without the purpose of tax avoidance, it is difficult to determine whether the actual owner are entitled to pay taxes.

According to the evidence evidence Nos. 8, 10, 12 through 15, and 38, Kim F (Work as D’s representative director from March 25, 2010) stated that "I think I think I would like to be a substantial d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’,” and "I stated that I would have been the next d’s d’s d’s d’ d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’s d’ s d’ s d’. d’. d’s d d’s d’s d’s d’s d’s d’s d’.

3. Conclusion

Therefore, the plaintiffs' claims of this case are justified, and all of them are accepted, and it is so decided as per Disposition.