In the case of title trust of shares for the purpose of tax avoidance, gift tax is imposed.

In the case of stock title trust, the nominal owner's unilateral act regardless of the nominal owner's intent, and the burden of proof that there was no purpose of tax avoidance exists the nominal owner.

Article 45-2 (Presumption of Donation of Title Trust Property)

2013-Gu Partnership-15205 Revocation of a disposition imposing gift tax

AA

O Head of tax office

Mar. 11, 2014

April 1, 2014

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 imposition of KRW 137,254,560 against the Plaintiff on October 10, 2012 is revoked.

1. Details of the disposition;

A. On December 18, 2007, CCC as its representative director and controlling shareholder of HH industry corporation (hereinafter “H industry”) sold a total of 161,400 shares of H industry in the name of CCC, KK, and Y (i.e., 132,00 shares + 24,000 shares of CCC + 24,000 shares of KKK + 5,400 shares + 16,110 shares per share) to 2,60,154,000 shares (16,110 won per share). However, on January 20, 2008, the transferee entered a sales contract in the name of PPP under the name of PPS, 81,690 MM, 30, 304 shares and 330D shares in each of the above shares under the name of 30D shares and 340D shares in the name of the Plaintiff (30D shares).

B. After that, HH industry offered capital increase on May 2, 2008, and as a result, 40,845 shares in the name of PP, 16,515 shares in the name of MM, and 11,670 shares in the name of the Plaintiff and DD, respectively, were allocated to each of 11,670 shares (hereinafter “instant 2 shares”).

C. From June 24, 2011 to September 24, 2011, the director of the Central Regional Tax Office: (a) conducted an investigation into the source of funds related to the change of H industry shares (hereinafter “instant investigation”); (b) as a result, the actual owner of the instant shares Nos. 1 and 2 was SS; and (c) deeming that SS was a title trust of the instant shares Nos. 1 and 2 to the Plaintiff, the director of the Central Tax Office notified the Defendant of the gift tax assessment data on October 7, 2011.

D. On September 5, 2012, the Defendant determined and notified the Plaintiff of KRW 95,734,050, and KRW 137,254,560, totaling KRW 41,520,510, which was donated on May 2, 2008, according to the gift tax assessment data (hereinafter “instant disposition”).

E. On October 24, 2012, the Plaintiff appealed to the Tax Tribunal, but the said claim was dismissed on December 31, 2012.

[Ground for Recognition: Facts without dispute, evidence Nos. 2-1, 2-2, evidence No. 6-2, evidence No. 1-1, 2-2, each entry of evidence Nos. 2 and 3, and purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the ground that it is unlawful for the following reasons.

1) The Plaintiff was actually purchasing the instant 1 stocks from the CCC on December 18, 2007 to hear the opinion that it was a plan to take over H industry from the friendly MM, and accordingly, the Plaintiff was changed to the name of the Plaintiff, and there was no fact that the instant 1 stocks were transferred to the title trust from the SS.

If it is not recognized that the Plaintiff purchased the shares of this case from the CCC, the entry of the title to the shares of this case into the title to the shares of this case is ultimately done by using the name of the Plaintiff at will without any transaction or communication with the Plaintiff.

2) Even if the Plaintiff is recognized as a title trustee of the shares Nos. 1 and 2 of the instant case, HH industry closed its business on March 7, 2012 due to its business insolvency and assets insolvency, and there was no dividends to the shareholders until then, and thus, the purpose of tax avoidance is not recognized.

3) The Defendant assessed the value of the first and second shares in excess of the market price.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the actual owner of the first and second shares of this case is SS

A) Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “former Inheritance Tax and Gift Tax Act”) applies 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 in order to transfer or exercise the right, and thus, the registration, etc. is not applicable in cases where the nominal owner unilaterally enters into a registration, etc. in the name of the nominal owner regardless of the intent of the nominal owner. In such cases, if the tax authority establishes only that the actual owner is different from the nominal owner, and establishes that the registration, etc., of the nominal owner was made by the unilateral act of the real owner regardless of the intent of the nominal owner, the nominal owner who claims it (see Supreme Court Decision 2007Du15780, Feb. 14, 208). The title trust relationship is not necessarily established by a contract between the truster and the trustee, but may also be established by implied agreement (see Supreme Court Decision 2001Da94, Apr. 2019, 9, 20001).

(3) On December 18, 2007, CCC, the controlling shareholder of H industry, and the controlling shareholder of HH industry, sold 161,40 shares of H industry, and the transferee prepared a sales contract stating the PP at the request of SS. On January 20, 2008, the transfer of ownership was made under the Plaintiff’s name with respect to 23,340 shares out of the above shares. On May 2, 2008, the transfer of ownership was made under the Plaintiff’s entry of 11,670 shares, and the transfer of ownership was made under the Plaintiff’s name with respect to 30 shares issued. The Plaintiff’s transfer of ownership was not deemed to have been made under the Plaintiff’s name with respect to 30 shares, and the Plaintiff’s transfer of ownership was not deemed to have been made under the Plaintiff’s name with respect to 30 shares issued. The Plaintiff’s transfer of ownership was also deemed to have been made under the Plaintiff’s name of 11,670 shares.

B) On December 18, 2007, the Plaintiff submitted to the seller “CCC and” column as evidence that it actually purchased the shares of this case from CCC on December 18, 2007, the Plaintiff submitted to the seller “CCC and “Buyer” column as the Plaintiff respectively. However, the “seller” column of the said share sales contract does not sign or affix any seal to the “seller” column of the said share sales contract, and according to the evidence Nos. 7, MM, which is to say that it was the plan to take over HH industry upon the investigation of this case on July 26, 2011, is subject to the investigation of this case, “I do not know at all about the shares or the number of shares transferred to the new name.” In light of the fact that the Plaintiff written a written contract on the shares, the Plaintiff’s testimony by the witness MM alone is insufficient to acknowledge the above assertion of the Plaintiff, and there is no sufficient evidence to acknowledge it otherwise. Therefore, the Plaintiff’s assertion is without merit.

In addition, the plaintiff asserts that SS used the name of the plaintiff for the illegal use of the name of the plaintiff and transfer of title to the first stock of this case, but there is no evidence to acknowledge this. Therefore, the above assertion is without merit.

2) Whether to recognize the purpose of tax avoidance

A) The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle to the effect that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, the proviso of the same Article is applicable only where the purpose of the title trust is not included in the purpose of tax avoidance. In such a case, the burden of proving that there was no purpose of tax avoidance. Therefore, the fact that there was no purpose of tax avoidance, other than the purpose of tax avoidance, can be proved by the method of proving that there was a purpose of tax avoidance. However, the nominal owner who bears the burden of proof has a clear purpose irrelevant to the tax avoidance to the extent that it is recognized that there was no purpose of tax avoidance in the title trust, and the fact that there was no tax avoidance in the future at the time of the title trust should be proved to the extent that there was no doubt if it is ordinary by objective and supporting evidence (see, e.g., Supreme Court Decision 2004Du11220, Sept. 22,

B) In light of the above legal principles, the following circumstances are comprehensively taken into account in the statement No. 2 and No. 8 of this case, namely, ① in the event that an oligopolistic shareholder who actually owns approximately 69% of the shares of HH industry and is 5% of the shares of this case and is in arrears in HH industry, there may be secondary tax liability for such oligopolistic shareholder, but the Plaintiff, etc. may avoid it by distributing the shares No. 1, 2, etc., thereby under title trust. ② It cannot be readily concluded that SS did not bear the liability to pay global income tax on the dividend income from holding the shares of this case in the future at the time of title trust to the Plaintiff. ③ Since SS was in arrears with global income tax of a significant amount at the time of transfer of shares No. 1 and No. 2 of this case, it is difficult to find that there was no evidence to acknowledge otherwise the purpose of the Plaintiff’s tax evasion under title trust No. 1 and No. 2 of this case. 1 through No. 5.

3) Whether the value of the shares has been appraised higher than the market price

Article 60 (1) and (2) of the former Inheritance Tax and Gift Tax Act provides that "The value of property on which gift tax is levied under this Act shall be in accordance with the market price as of the date of donation, and in this case, the market price shall include the value which is generally recognized as normal in cases of free transactions between many and unspecified persons, and which is recognized as the market price, as prescribed by Presidential Decree, such as the expropriation, public sale price, appraisal price, etc." Paragraph (3) of the same Article provides that "where it is difficult to calculate the market price in applying paragraph (1), it shall be appraised in accordance with the methods prescribed in Articles 61 through 65 in consideration of the type, scale, transaction circumstances, etc. of the relevant property, and Article 63 (1) 1 (c) of the same Act provides that "in cases of non-listed stocks, it shall be appraised in accordance with the method prescribed by Presidential Decree in consideration of the assets, earnings, etc. of the relevant corporation, and Article 54 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 21292, Feb. 4, 20009).

Comprehensively taking account of the overall purport of the arguments in the statements in the evidence Nos. 2 and 3 of this case, there was no fact of sale, appraisal, expropriation, auction or public sale during the period of not more than 3 months before and after Jan. 2008 and May 2, 2008, which is the date of deemed donation of each of the shares of this case, and the defendant can recognize the fact that the value of the shares Nos. 1 and 2 of this case is lawfully assessed based on the supplementary method of assessment of unlisted shares under the above Act based on the settlement of accounts in the year immediately preceding the date of title trust. Thus, the plaintiff's

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.