Chuncheon District Court 201Guhap35 (02.17)

early 2010 Heavy2465 ( October 12, 2010)

In title trust, it cannot be readily concluded that there was no intention of tax avoidance in title trust.

Inasmuch as the amount of tax on the dividend income that can be avoided through the title trust is not significant, or there is no reduced tax avoidance or reduced tax on the shares through the title trust, it cannot be readily concluded that there was no intention of tax avoidance in the title trust under tax law in the title trust.

(Chuncheon)Revocation of revocation of the imposition of gift tax, 2012Nu237

A

Head of the District Tax Office

Chuncheon District Court Decision 201Guhap35 Decided February 17, 2012

April 3, 2013

July 24, 2013

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposing gift tax of KRW 14,036,160 on the plaintiff on May 11, 2010 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this court's decision is as stated in the first instance court's decision except for "the part used for the purpose of tax avoidance in the title trust of stocks of this case as stated in the second instance court's decision", and therefore, it should be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

(2) Whether there was no purpose of tax avoidance in the title trust of the instant shares

(A) Relevant legal principles

The legislative intent of Article 45-2(1) of the Inheritance Tax and Gift Tax Act is to recognize exceptions to the substance over form principle to the purport that the tax justice is realized by effectively preventing the act of tax avoidance using the title trust system. Thus, if the title trust was conducted for any reason other than the early tax avoidance purpose, and if it is only a minor tax reduction incidental to the said title trust, it cannot be readily concluded that the title trust has tax avoidance purpose. However, in light of the legislative intent as above, only if the purpose of the above provision is not included in the purpose of the title trust, it cannot be determined as a deemed donation by applying the proviso of the above provision, and if the purpose of the title trust is not included in the purpose of the tax avoidance, and if it is deemed that there was any intention of the tax avoidance, it cannot be said that there was no other purpose of the title trust, and in this case, the burden of proof on the fact that there was no intention of the tax avoidance purpose is the person who asserts it (see, e.g., Supreme Court Decision 2007Du1931, Apr. 9, 17).

In addition, as the nominal owner who bears the above burden of proof, there was an obvious purpose irrelevant to the tax avoidance to the extent that it is deemed that there was no tax avoidance purpose in the nominal deposit, and it is necessary to prove that there was no tax avoidance in the future at the time of the nominal deposit or at the time of the nominal deposit to the extent that it would not be doubtful if the ordinary person is based on objective and apparent evidence (see, e.g., Supreme Court Decisions 2004Du1120, Sept. 22, 2006; 2010Du23569, Feb. 24, 2011).

Furthermore, it is reasonable to view that the issue of whether there was a purpose of tax avoidance or not should be determined at the time of title trust as to whether the pertinent property was deemed donated under the title trust, and that it should not be determined as to which tax has been actually evaded after the title trust (see, e.g., Supreme Court Decisions 2003Du4300, Jan. 27, 2005; 2004Du11220, Oct. 29, 2009; 2009Du11348, Oct. 29, 2009).

(B) Determination on the assertion that it is intended to meet the number of promoters

The plaintiff, and the former 7 shareholders at the time of the first incorporation of the company, were acquiring the shares of this case by lending the plaintiff's name to 7 persons, and the following circumstances acknowledged by these facts and evidence, i.e., the Commercial Act amended by Act No. 6488 of July 24, 2001, which entered into force on the same day, did not impose any restrictions on the number of promoters necessary for the establishment of the company). And the time when Park Park Jong acquired the shares of this case and title trust to the plaintiff by the plaintiff on July 12, 2004 should meet the requirements of the number of promoters.

1) Article 288 of the Commercial Act amended by Act No. 4796 of Dec. 22, 1994 provides that seven or more promoters for the incorporation of a corporation shall be involved, but the Commercial Act amended by Act No. 6086 of Dec. 31, 1999 requires that three or more promoters be involved, and the Commercial Act amended by Act No. 6488 of Jul. 24, 2001 does not limit the number of promoters.

없었던 점(뿐만 아니라 갑제5호증의 기재에 의하면， 박AA은 이 사건 주식을 한BB 로부터 2003. 12. 11.경 양수받은 것이어서， 당초부터 회사 설립을 위한 발기인의 수의 충족은 전혀 문제가 되지 않는다)， ® 박AA이 한BB로부터 이 사건 주식을 양수할 때 당사자 간에 주주를 7명으로 맞추어 양수하기로 논의하거나 약정하였음을 인정할 만한 아무런 증거가 없는 점 등과 위의 법리를 종합해 볼 때， 원고가 제출한 증거만으로는 박AA이 원고에게 이 사건 주식을 명의신탁한 것이 조세회피와는 상관없는 상법 상 요구되는 발기인 수의 요건을 충족하기 위한 목적에 의한 것이라고는 인정할 수 없으므로， 원고의 이 부분 주장은 이유 없다.

(C) Determination on the assertion that the purpose was to avoid the provision of exclusion from the selection of supervisory duties by affiliated companies under the former Enforcement Decree of the Construction Technology Management Act

원고는， 구 건설기술관리볍 시행령(2003. 6. 30. 대통령령 제18039호로 개정되기 전의 것) 제51조 제1항2)에 의하면 당해 건설공사를 도급받은 자 및 도급받은 자의 계열회사를 감리전문회사로 선정하여서는 아니 되며， 감리업무를 수행중인 감리전문회사가 당해 건설공사를 도급받은 자의 계열회사로 된 경우에는 감리전문회사를 교체하여야 하는데， 박AA은 QQ종합건설 주식회사(이하 'QQ종건'이라 한다)의 대주주 로 자신 명의로 총 21.80%의 지분을 보유하고 있었는바 감리전문회사인 이 사건 ZZ이엔씨의 주식을 자신이 30% 이상 보유하게 될 경우 계열회사 관계가 나타나 ZZ이엔씨가QQ종건이시행하는건설공사의감리업무를맡을수없게되어위와같이원고에게 명의선탁을 한 것이라고 주장한다.

(ii) Article 51 (Selection, etc. of Specialized Company A)

"i" In case the contracting authority selects a specialized construction-supervising firm to have it perform responsible supervision, etc. pursuant to Articles 27 and 27-2 of the Act, it shall not select a contracting party for the construction work (in case where a joint contract has been made by means of a design and a package deal tender, a joint beneficiary) and a contracting party's affiliated companies as a specialized A, and in case the specialized construction-supervising firm in charge of supervision becomes an affiliated company of the contracting party, a specialized construction-supervising company in charge of the construction work shall immediately replace A; 3) Article 2 (Definitions).

The definitions of terms used in this light shall be as follows:

2. The term "enterprise group" means that the same person sells its business substantially according to the following distinction pursuant to the standards prescribed by the Presidential Decree:

group of companies means a group of companies;

a) In the case of a corporation, a group of two or more companies under the control of the same person and that of one or more companies under the control of the same person, if the same person and the same person are not the

3. The term "pending heat company" means that where two or more companies belong to a unified enterprise group, each company is called an affiliated company of the others.

(iv)Article 3 (Scope of Business Groups);

For the purpose of subparagraph 2 of Article 2 of the Act, the term “company whose business contents are in fact controlled according to the standards as determined by the Presidential Decree” means a company which falls under any of the following subparagraphs:

1. A company in which the same person holds independently or in combination with a person falling under any of the following items (hereinafter referred to as a “unitized person related thereto”) not less than 30/100 of the total number of issued stocks (excluding non-voting stocks under Article 370; hereafter the same shall apply in this Article, Articles 3-2, 17-5, and 18) of the company concerned as the largest investor:

(a) Spouse, blood relatives within the eighth degree, and relatives within the fourth degree (hereinafter referred to as "relative");

(b) A non-legal entity or organization (referring to an unincorporated association or foundation; hereinafter the same shall apply) to which not less than 30/100 of the total amount of contributions has been contributed independently or jointly with the persons related to the sameel and which either becomes the largest contributor or one of the persons related to the same person has established);

(c) A non-permanent light or organization in which the same person exercises dominant influence over the composition of executives, business management, etc., directly or through a person related to the same person;

(d) A company whose business activities are substantially controlled by the same person pursuant to this subparagraph or subparagraph (2).

E. Employees of the persons falling under items (b) through (d) (in case of a corporation, referring to executives, and employees by commercial or employment contract in case of an individual) and the same person.

살피건대， 갑제4， 6， 8， 15， 17호증(가지변호 있는 것은 가지번호 포함)， 을제9 내지 11호증(가지번호 있는 것은 가지번호 포함)의 각 기재， 원심 증인 박AA의 일부 증언 및 변론 전체의 취지에 의해 인정되는 다음과 같은 사정들 즉 ① 계열회사의 범위를 정하는 것은 구 독점규제 및 공정거래에 관한 법률(2004. 12. 31. 법률 제7315호로 개 정되기 전의 것， 이하 '공정거래법'이라 한다) 제2조3)인데， 이 사건 명의신탁 당시 박정 학은 QQ종건의 주식 중 21.80%를， 그의 처인 최연희는 24.96%를 소유하고 있어， 이 미 공정거래법 시행령(2005. 3. 8. 대통령령 제18736호로 개정되기 전의 것) 제3조4)에 서 말하는 '동일인'이 '동일인 관련자'와 합하여 QQ종건 발생주식 총수의 30% 이상을 소유하는 경우로서 그들이 위 회사의 사업내용을 지배하고 있었던 점，② 이 사건 명의신탁 당시 박AA은 ZZ이엔씨의주식28.30%를， 그의 처 최연희는 17.22%를， 그의 아들 박EE는 25.07%를 각 소유하고 있어， 그들이 위 회사의 사업내용을 지배하고 있었던 점，③ 공정거래법 제2조 제2호 나목 및 제3호에 의해 QQ종건과 ZZ이엔씨는 이 사건 명의신탁과는 관계없이 이미 계열회사에 해당하는 점， ④ 2004. 5. 6.경 QQ 종건이 수급받은 국도59호선 개량공사의 감리자는 TT국도유지건설사무소로서 당시 ZZ이엔씨는 감리를 맡은 사실이 없는 점，⑤ 원고는 박AA이 QQ종건의 주식을 21.80%만 보유하고 나머지 주주는 그와 성씨가 툴려서 외관상 계열회사임이 확인되지 않을 수 있다고 주장하나 주주명부(갑제16호증)상 최연희는 박AA과 주소가 동일하여 쉽게 그 관계를 확인할 수 있을 것으로 보이는 점，⑥ 박AA이 ZZ이엔씨의 주식을 다시 매각하기 이전까지는 ZZ이엔씨가 QQ종건이 시행하는 건설공사의 감리를 맡은 적이 없는 점(ZZ이엔씨는 박AA이 그 주식을 모두 매각한 2007. 4. 12. 이후에 QQ 종건이 시행하는 공사의 감리를 맡게 되었다) 등과 위의 법리를 종합해 볼 때， 박AA 이 원고에게 이 사건 주식을 명의신탁한 것이 조세회피와는 상관없는 구 건설기술관리 법 시행령상 계열회사의 감리업무 선정 배제 조항을 회피하기 위한 목적에 따른 것이 라고는 인정할 수 없으므로， 원고의 이 부분 주장도 이유 없다.

(D) Determination as to the assertion that there was no tax actually avoided

The plaintiff asserts that even if there was a nominal deposit for the shares in this case, there is no secondary tax liability and deemed acquisition tax of oligopolistic shareholders, and other taxes are merely more feasible or minor tax reduction exists.

The issue of whether or not there was a tax avoidance purpose, and the issue should be determined at the time of title trust. (1) Considering that the evidence submitted by the Plaintiff alone is insufficient to readily conclude that Park is not liable to pay global income tax on the dividend income accruing from the possession of the shares in this case at the time of title trust to the Plaintiff, and that Z was not actually distributed to the Plaintiff, it cannot be readily concluded that Z did not have the purpose of avoidance of protocol at the time of title trust to the shares in this case (see Supreme Court Decision 2009Du11348, supra) on the sole ground that Z did not have the purpose of avoidance of tax evasion (see Supreme Court Decision 2009Du11348, supra), and CZ did not have any overall evidence that the earned surplus in 204 of ZC was 57666,64251 won, and that there was no possible dividend possibility of the shares in this case, and that there was no difference between 201 and 190 shares in the name of the Plaintiff and 2010 shares in this case.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.