Seocho 2015west 1321 (O4.01)

Since it is highly probable to avoid the secondary tax liability of oligopolistic shareholders through stock trust, it is difficult to recognize that there was no tax avoidance purpose.

In the event that an oligopolistic shareholder distributes distributable profits with considerable probability of avoiding secondary tax liability through a stock title trust, the imposition of gift tax is legitimate because it is difficult to recognize that there was no tax avoidance purpose in the stock title trust act due to considerable probability of avoiding dividend income accumulated dividend income.

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

2016Guhap67974

New AA et al.

Head of △ District Office

on October 24, 2017

on October 10, 2017

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The imposition of the gift tax by the Defendant on July 24, 2014 against the Plaintiff, and the imposition of the gift tax by the KRW ○○○○○○ upon the Plaintiff’s newB, shall be revoked. The imposition of the gift tax by the Defendant against the Plaintiff on December 4, 2014, and the imposition of the gift tax by the KRW ○○○○○ upon the Plaintiff’s newB on December 4, 2014, shall be revoked.

1. Details of the disposition;

A. 1) On April 30, 1999, ParkCC held the title trust of ○○○○ shares of ○○○○ shares of ○○○ shares of Plaintiff NewB (hereinafter “○○ shares”) with Plaintiff NewB on April 30, 199 (hereinafter “instant primary title trust”).

2) On November 2, 2004, ○○○ issue issued with capital increase, and according to the shares, Plaintiff New York received ○○○○○, and Plaintiff NewB received the allocation of ○○○○○. On November 2, 2004, Plaintiff NewB paid ○○○○○○○ on ○○ case. Plaintiff NewB paid ○○○○ on November 2, 2004, and Plaintiff NewB paid ○○○○○○○ on ○○○ case on November 2, 2004. Plaintiffs received the said money from the ParkCC on November 3, 2004 (hereinafter “instant secondary title trust”). The Plaintiffs received the money paid from the said ○○○○○○ case (hereinafter “instant secondary title trust”). The instant primary title trust combined with the instant primary title trust”).

B. 1) On July 24, 2014, pursuant to Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6408, Dec. 28, 1999), the Defendant imposed ○○○○○○ and ○○○○○ on the title trust of the instant primary property on Plaintiff NewB, with respect to the instant primary property trust.

2) On December 4, 2014, pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7335, Jan. 14, 2005) (hereinafter referred to as “the pertinent provision on deemed donation” in combination with Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6408, Dec. 28, 199) (hereinafter referred to as “the pertinent provision on deemed donation”), the Defendant imposed ○○○○ and ○○○○ on Plaintiff NewB on the instant secondary title trust (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 6, 8, 9 evidence, Eul 1, the purport of the whole pleadings

2. Relevant statutes;

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

3. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

In full view of the following circumstances, the title trust of this case did not have the purpose of tax avoidance.

1) If ○○ building was in the form of an affiliate of △△ Construction Co., Ltd. (a company that the Plaintiff is a major shareholder or operates as a representative director; hereinafter “△△ Construction”), the instant title trust was concluded under the judgment that the participation in the bidding process of the apartment sales construction of a regional housing association that was conducted at the time of the construction of △△△△, and that some of the construction works in the urban development project in the △△△ City will be possible to receive a contract for the instant urban development project. In fact, ○○ building received some of the construction works in the △△ City Development Project on Nov. 1,

2) Although DoD (her husband of ParkCC) became out of the status of oligopolistic shareholder with the secondary tax liability due to the instant primary title trust, ○○ case did not default after the instant primary title trust.

3) DoD and ParkCC held 9.52% of the shares of ○○○○○○○○○○ stocks prior to the instant first title trust, but it is difficult to deem that they were intending to avoid liability to pay additional acquisition tax on 0.48%. Since the Plaintiffs are expected to be applying higher tax rate than ParkCC, it is difficult to deem that there was a purpose to avoid progressive tax on dividend income.

B. Determination

1) The legislative purport of the provision on deemed donation of this case is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance using the title trust system is effectively prevented, and thus, it is possible to apply the proviso of the same Article only in cases where the purpose of tax avoidance is not included in the purpose of the title trust, and in such cases, the burden of proving that there was no purpose of tax avoidance can be proved by means of proving that there was no purpose of tax avoidance, other than the purpose of tax avoidance. However, as the nominal owner who bears the burden of proof, the person who bears the burden of proof has clearly, to the extent that it is recognized that there was no purpose of tax avoidance in the title trust, and to the extent that there was an obvious purpose that there was no purpose of tax avoidance in the future, and to the extent that there was no doubt about the ordinary person based on objective and conclusive evidence that there was no tax avoidance at the time of the title trust (see, e.g., Supreme Court Decision 2010Du24968, Mar. 28

2) According to Gap evidence Nos. 3, 10, 12-18, 199, △△ Construction was a real estate development company, and around 199 (the first title trust time in this case), △△ Construction was engaged in the sales agency business of five apartment units, including ○○○○○-dong, ○○ apartment units 541 households. ② The construction of apartment units was mainly carried out by the viewing office of education, etc. around that time; ③ around 198, 1998, △△△ Construction, etc. proposed the development of Mandong-dong, ○○-dong, ○○-dong, ○○○-dong, ○○-dong, ○○-dong, etc., the construction of apartment units with respect to quasi-rural areas was revoked in the land transaction permission zone and allowed construction of apartment units with respect to quasi-rural areas around 1999. around February 6, 206, △△△△ Construction, etc., proposed the construction of Mandong-dong area.

3) However, in full view of the following facts and circumstances that can be recognized by the descriptions of Gap evidence Nos. 4-8, 11, and 2-8 and the purport of the entire pleadings, it is insufficient to recognize the facts of recognition of the above 2 and the evidence submitted by the plaintiffs alone that there was no purpose of tax avoidance at the time of the title trust, and there is no other evidence to acknowledge it. Accordingly, all of the dispositions of this case are legitimate.

A) DD practically exercised the right to 9.52% (52.04% of shares in DoD’s name shares, and 47.48% of shares in ParkCC’s name) shares prior to the first title trust of this case, and thereby constitutes an oligopolistic shareholder under Article 39 of the former Framework Act on National Taxes. However, as well as the first title trust of this case, DD transferred 3.51% (10,540 shares in ○○○○○○ shares) of the same day as the first title trust of this case, thereby getting out of the position of oligopolistic shareholder in form.

B) Diplomatic was dissolved on November 23, 1976 after the entry into the Republic of Korea EE on December 1, 1964 and the new FF (friendly with the plaintiffs). Diplomatic was dissolved on November 23, 1976. Around 2011, Diplomatic was in a three-year relationship between the plaintiffs and Dental. Diplomatic was in a three-year relationship with the public prosecutor’s reference to the public prosecutor’s office, considering that it was not a relative relationship with the plaintiffs, but a one-person company is not a specially related company, and that it was convenient for the non-related parties to receive shares, and that it was a title trust with the plaintiffs. In view of the relationship between the plaintiffs and Diplomatic, and the contents of Dental’s statement, even if DD did not specifically avoid a specific tax liability at the time of the first title trust, it would have been likely to avoid any disadvantage due to the operation of ○○○ case as a shareholder.

C) The first title trust of this case was made on April 30, 199. On the other hand, the fact that ○○ case ordered part of the construction in the knive area around November 2007, there exists a time interval of not less than 8 years. Moreover, the evidence Nos. 3, 10, 12, and 16 submitted by the Plaintiff is merely the ○○ case, the business details that △△ Construction was conducted, the company introduction data, and the proposal for the urban development project in the knive area. There is no data to find out the developments leading up to the partial progress of ○○ case’s knive area’s knive area’s knive area’s knive area’s knives, and

D) The earned surplus available for the distribution of ○○too has reached KRW 00 won in around 2002 and continuously increased thereafter (the time when the Plaintiff transferred the name of shares to ParkCC) and around 2011 (the time when the Plaintiff transferred the name of shares again). The dividends therefrom are determined by the intent of ○○tooto and ParkCC, a substantial shareholder of ○○too. On the other hand, from around 1999 to 201, the Plaintiffs’ income was always higher than the ParkCC at all times (in the case of Plaintiff NewCC, it falls under eight years from the year when the income did not accrue in the case of Plaintiff NewCC). In such a situation, if so decided by adjusting the dividend time, dividend amount, etc., the progressive tax rate for the dividend income could have been avoided.

4. Conclusion

The plaintiffs' claim of this case is dismissed as there is no reasonable ground.