Seocho 2014west 5656, 205521)

It cannot be recognized that the deceased stolen the name of the plaintiffs, and that the plaintiffs comprehensively accepted the acquisition of the deceased's shares in the future.

It is clear that the application form for the establishment of a securities account in the name of the plaintiffs is opened directly by the plaintiffs' put in line with the deceased, and it is reasonable to view that the deceased's comprehensive consent is given unless the deceased bears a duty to report and consent on the acquisition of shares.

Donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

Seoul Administrative Court 2015Guhap72054

○○ ○ 1

○ Head of tax office

May 27, 2016

August 26, 2016

1. The plaintiffs' claims are dismissed.

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

Cheong-gu Office

On August 1, 2014, the imposition of each gift tax by the Defendant against Plaintiff Kim ○ on the attached Table 1-1 through 10 and the imposition of each gift tax by the attached Table 2-1 through 8 against Plaintiff Kim Jong-tae shall be revoked.

1. Details of the disposition;

A. On July 30, 2002, the deceased Kim △△△△ (hereinafter referred to as “the network”). On July 30, 2002, the deceased opened a securities deposit account (Account Number: 000-00 -00000) in the name of the plaintiff Kim ○○○, a securities deposit account (Account Number: 00-00 -00000) in the name of the plaintiff Kim△△△, Inc. on September 3, 2004 (hereinafter referred to as “each of the above securities deposit accounts”). On September 3, 2004, the deceased traded shares through each of the instant accounts (hereinafter referred to as “each of the instant accounts”). The deceased traded shares through each of the instant accounts from the date of opening each of the instant accounts.

B. Around September 2013, the Defendant conducted an investigation into the source of funds against the Plaintiffs, and confirmed that the actual owner of each of the stocks traded through each of the instant accounts and the transfer of which was made to the Plaintiffs as of the end of each year. Accordingly, the Defendant imposed each gift tax on the Plaintiffs on August 1, 2014 by applying the provision on deemed donation of title trust under the Inheritance Tax and Gift Tax Act (Article 45-2 of the current Inheritance Tax and Gift Tax Act; hereinafter “instant provision”). The Defendant: (a) the amount of respective gift tax on the Plaintiffs at the time; (b) the amount of each gift tax on the Plaintiffs from 2002 to 2012; (c) the amount of each gift tax from 2004 to 2012 by multiplying the number of stocks of each of the Plaintiffs whose transfer was made to each of the end of each year by the closing price on the day; and (d) the amount calculated by adding the additional tax and the additional tax again by applying Article 57 of the current Inheritance Tax and Gift Tax Act.

C. On October 2, 2014, the Plaintiffs appealed to the Tax Tribunal. In addition, the Tax Tribunal rendered a decision on May 21, 2015 to the effect that, in the application of the instant provision, the provision on the gift tax by omission of a household cannot be applied, and that, “the amount of tax shall be corrected by excluding the increased amount of gift by omission of a household,” among the Defendant’s respective disposition imposing gift tax by omission of a household,” and that “the claim for payment of a payment by a household is dismissed as all of its grounds are groundless.”

D. In accordance with the purport of the decision of the Tax Tribunal, the Defendant issued a decision of partial reduction of each gift tax on the Plaintiffs. The remaining amount of tax is the same as the amount stated in the [Attachment 1 and 2] "total amount of tax," (hereinafter "each disposition in the case of each disposition in which the remaining amount excluding the amount reduced according to the above decision of correction is referred to as "each disposition in the case of each disposition in question").

[Reasons for Recognition] No dispute exists, each entry of Gap evidence Nos. 1 through 5 (including paper numbers, hereinafter the same shall apply) and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The primary argument

For the following reasons, each of the dispositions of this case is unlawful.

A) ① Each of the accounts of this case is opened by misappropriation in the name of the deceased. ② Even if the plaintiffs consented to the opening of each of the accounts of this case, the plaintiffs did not have consented to the acquisition of shares via each of the accounts of this case. ③ Even if the plaintiffs consented to the acquisition of shares through each of the accounts of this case, the plaintiffs' consent was not effective since the plaintiffs' consent was not granted to the deceased Kim ○, and since the plaintiffs' consent was not reached. Since the plaintiff Kim ○ was a minor at the time of the time, the plaintiff Kim Jong-tae was a minor, and thus, the plaintiff Kim Jong-tae was put to a minor at the time of the time, and the consent did not have any profit to the plaintiff Kim △, but it should also be deemed that the consent constitutes the abuse of parental authority to only pay a huge gift tax (the plaintiff's act of allowing the deceased to open each of the accounts of this case, i.e., opening of an account by delivering documents for opening the accounts of this case to the deceased, but the plaintiff did not have any title trust agreement between the deceased and the plaintiffs.

B) At the time of opening each of the instant accounts, the Deceased was only the purpose of avoiding restrictions on subscription for subscription per head, but did not have the intent to avoid taxes.

2) Preliminary assertion 1

For the following reasons, among each of the dispositions of this case, the remaining dispositions except the imposition of gift tax on the stocks whose transfer is made to the Plaintiffs in the taxable year 2002, and in the taxable year 2004, are unlawful.

A) Even if there was a title trust agreement on the acquisition of shares between the deceased and the plaintiffs, the genuine intent of the parties shall be interpreted as only the shares acquired from the first year of opening each of the instant accounts, and it shall not be interpreted as a title trust for all the shares traded thereafter.

B) In addition, in the first year of the opening of the account of this case, even though gift tax was imposed on each of the shares that were transferred to the plaintiffs in the first year, if the shares were disposed of and new shares were acquired thereafter, the gift tax is imposed again on the new shares, which is not only double taxation, but also the same shares are not imposed upon the same shares if the shares were disposed of thereafter and the same shares were acquired thereafter, which is contrary to the tax equity, and in particular, in the case of unlisted shares, the gift tax is imposed repeatedly whenever the new shares are acquired and the transfer of ownership is made.

3) Preliminary assertion 2

The Plaintiffs did not know at all that there was a gift tax liability under the instant provision, and did not have been expected to pay gift tax. Therefore, the Plaintiffs should be deemed to have justifiable grounds for not paying gift tax. Therefore, the imposition of additional tax among each of the instant dispositions is unlawful.

B. Determination

1) The primary argument

A) - 1) - argument

The instant provision applies in cases where the actual owner and the nominal owner make registration, etc. in the name of the nominal owner by means of an agreement or communication with respect to property requiring the transfer or exercise of rights, and such registration, etc. is unilaterally made in the name of the nominal owner regardless of the intent of the nominal owner. In such a case, if the tax authority establishes only the fact that the actual owner is different from the nominal owner, and if the tax authority proves that the registration, etc. of the nominal owner was made in the unilateral act of the actual owner regardless of the intent of the nominal owner, the nominal owner who asserts it (see, e.g., Supreme Court Decision 2007Du15780, Feb

In the instant case, the actual owner of each of the shares transferred to the Plaintiffs through each of the instant accounts does not have any dispute between the parties, and thus, the Plaintiffs must prove that the deceased used the name of the Plaintiffs.

Of the evidence submitted by the plaintiffs, Gap evidence No. 6, which seems consistent with the above, is a statement prepared around September 2014 and submitted to the Tax Tribunal. The content of the statement is that "the deceased opened a deposit account in the name of Kim○, around July 2002, the deceased Kim○, and requested the plaintiff Kim○, without explaining the reasons to the plaintiff Kim○, and although the plaintiff Kim○ requested that the resident registration certificate be changed without explaining the reasons, the plaintiff Kim○ at the time of requesting that the plaintiff Kim○ did not find the resident registration certificate, the plaintiff Kim○'s certified copy of the plaintiff Kim○ and his resident registration certificate was changed to the deceased, and the deceased requested the deceased to open a deposit account in the name of the plaintiff Kim○○ on his behalf on September 2004 and submit all documents to the deceased. The plaintiff Kim Jong-chul demanded the deceased to change his resident registration certificate without explaining the reasons to the plaintiff Kim Jong-tae, and eventually, the plaintiff Kim Jong-tae opened his resident registration certificate to the plaintiff Kim Jong-tae, and eventually the plaintiff Kim△ and the plaintiffs did not know at all.

However, the writing on the written application for opening of each securities account in the name of the plaintiffs (No. 7 and No. 8) appears to be the same as the writing book of Kim Young-chul, as shown in the account book of opening (No. 7) and the examination report (No. 8) prepared by the tax office, which was submitted to the tax office having jurisdiction over the plaintiffs, and submitted to the tax office, and it is apparent that it is different from the writing book of the deceased as shown in the written answer (No. 9) submitted by the deceased to the tax office having jurisdiction over the deceased. In addition, in the face of the bank book for opening the securities account (No. 7), it is apparent that the first written "○○○○○○○○○○○○ apartment, 000,000, which was the domicile of the plaintiffs and Kim Jong-dong, and then changed to the "○○○○-dong,000,000, which was the domicile of the deceased, at the time of the death's domicile. Furthermore, it is not clear that the content of the plaintiff 200.

Therefore, it cannot be acknowledged that the deceased used the name of the plaintiffs only with the statement of No. 6, and there is no other evidence to acknowledge it. Thus, this part of the plaintiffs' assertion cannot be accepted.

A) - - 2) argument

Each of the accounts of this case is an ordinary securities transaction account, and the account holder may acquire shares in the name of the account holder without any restriction. Therefore, the Plaintiffs’ consent to the establishment of each of the accounts of this case is reasonable to deem that the deceased comprehensively consented to the acquisition of shares in the name of the Plaintiffs, unless the deceased specifically did not impose the obligation to report on the acquisition of shares and to consent to the Plaintiffs. The Plaintiffs did not know what the shares to be acquired in the future. Accordingly, the Plaintiffs’ assertion on this part is rejected.

A) - - 3 Claims

As seen earlier, in applying the provision of this case, the certificate that the registration, etc. of the nominal owner was made regardless of the intent of the nominal owner should be proved by the nominal owner. Thus, in this case, the plaintiff Kim ○○ should prove the fact that Kim ○○ gave his consent to the acquisition of shares in the name of the plaintiff Kim ○○ without obtaining a legitimate right of representation from the plaintiff Kim○○, and that he consented to the acquisition of shares in the name of the plaintiff Kim○○○. The statement of No. 6 is difficult to believe as a whole, there is no other evidence to prove it, and rather, according to the overall purport of the statement of No. 4 and oral argument, the plaintiff Kim ○ submitted to the tax authority a written confirmation that "the plaintiff Kim ○ had the parent keep his seal imprint and manage his own funds from 2002." Accordingly, it may be reasonable to view that the plaintiff Kim ○○ conferred the comprehensive power of representation to the

On the other hand, even though Kim Young-chul consented to the acquisition of shares in the name of plaintiff Kim Young-chul (or the opening of an account in the name of plaintiff Kim Young-chul), the act does not constitute an abuse of parental authority due to the objective nature of the act, and even if the tax authority is found to have abused parental authority over the plaintiff Kim Young-chul, it cannot be viewed differently. In particular, considering all the circumstances, such as the relationship between the deceased and the plaintiff Kim Young-chul, the deceased have traded shares over a considerable period of time through each of the instant accounts, and the value of the shares has been increased to a considerable degree, it is more so in that the possibility that the deceased would donate the shares acquired in the name of plaintiff Kim Jong-tae and the possibility that it was possible at the time of such act. Accordingly, this part of the plaintiffs' assertion is not accepted.

B) In applying the instant provision, the burden of proving that there was no tax avoidance purpose is the one who asserts the provision (see, e.g., Supreme Court Decision 2007Du19331, Apr. 9, 2009).

Although the purpose of opening each of the accounts of this case was to make a public offering offer, "the purpose of tax avoidance" in the application of the provision of this case refers to the intention of tax avoidance following the acquisition of borrowed stocks. Thus, it cannot be readily concluded that the deceased did not have any purpose of tax avoidance, and there is no other evidence to acknowledge it, and rather, it is recognized by the overall purport of each of the statements and arguments as follows. In other words, the dividends of each of the shares acquired by the deceased through each of the accounts of this case are 637,041,710 won, and are excluded from the subject of tax return of aggregate financial income or subject to progressive tax rate due to failure to report dividend income even if the dividends of each of the shares acquired by the deceased were to 637,041,710 won. Meanwhile, considering the fact that the deceased had been engaged in salt farm business for a long time and had many experience in stock transactions, it is reasonable to view that the purpose of tax avoidance was well known about dividend income taxation issues in the name of the plaintiffs. Accordingly, this part of this part is rejected.

2) Preliminary assertion 1

A) There is no ground to interpret the deceased and the parties’ intent as allowing title trust only with respect to the shares acquired in the first year of the opening of each of the respective accounts of this case, and rather, as seen earlier, the Plaintiffs consented to the opening of each of the accounts of this case, insofar as the deceased did not particularly bear the duty to report on the acquisition of shares and to consent, it is reasonable to view that the deceased would freely consent to the acquisition of shares in the name of the plaintiffs in the future, and it is not different on the ground that the Plaintiffs did not know about the shares to be acquired in the future. Accordingly, this part of the Plaintiffs’ assertion is rejected.

B) Meanwhile, as an exception to the substance over form principle, the instant provision is a restrictive norm intended to realize tax justice by effectively preventing the abuse of the title trust system as a means of tax avoidance. Notwithstanding the instant provision, the actual owner of the title trust property still is the title truster (see, e.g., Supreme Court Decision 2004Du11220, Sept. 22, 2006). Furthermore, the provision on constructive gift of title trust is a provision imposing gift tax on the actual owner based on the fact that the nominal owner is different from the nominal owner as a taxation requirement, and the property deemed as being donated is not the acquisition fund of shares, but the ownership itself (see, e.g., Supreme Court Decision 2015Du43650, Aug. 18, 2016). In light of the foregoing, even if the gift tax was imposed on each of the shares transferred to the Plaintiffs in the first year in which the account was opened, it cannot be deemed as a double taxation even if the new shares are disposed of after the acquisition of the shares, and the same purport of the shares should not be imposed.

3) Preliminary assertion 2

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, a taxpayer’s intentional or negligent act is not considered, and the site, error, etc. of statutes do not constitute justifiable grounds that do not constitute a breach of duty (see Supreme Court Decision 2002Du10780, Jun. 24, 2004).

In relation to the gift tax resulting from the constructive gift under title trust, it is not exempt from the filing of a return on the tax base of the gift tax (see, e.g., Supreme Court Decision 2002Du2826, Oct. 10, 2003), so long as the Plaintiffs fail to fulfill their obligation to report and pay the gift tax base, the general non-declaration of tax and penalty tax may be imposed, unless the Plaintiffs do so. Therefore, the Plaintiffs cannot be deemed to have justifiable grounds for failing to fulfill their obligation to report and pay gift tax, solely on the ground that it is difficult to expect that the tax authority should actually return and pay gift

C. Sub-committee

Each disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.