beta
Title
title trust with the purpose of tax avoidance
Summary
In full view of the fact that it is possible to avoid the progressive tax rate of gift tax or inheritance tax in case of donation or inheritance of stocks to a third party, stocks are held in title trust for the purpose of tax evasion, and the stock appraisal date shall be the day following the day on which the cause for stock increase, etc. occurs.
Cases
2012Guhap254777 Revocation of Disposition of Imposition of Gift Tax
2012Guhap25521(combined) revocation, etc. of disposition imposing gift tax
2012Guhap25569(combined) revocation, etc. of disposition imposing gift tax
Plaintiff
1. RoW2.AnnbL 3. RoR
Defendant
1.2.Syeng Tax Director; 3.Sye Tax Director;
Conclusion of Pleadings
August 23, 2013
Imposition of Judgment
September 27, 2013
Text
1. (a) The part of the imposition disposition by the Head of Jung-gu Tax Office of the Plaintiff on January 18, 2012, which exceeds the KRW OO of the imposition disposition by the OOOO on the gift tax of the Plaintiff on January 18, 2012, and by the OOO of the penalty tax of the deceased on December 10, 2012, respectively:
B. The part of the imposition of the penalty tax on January 2, 2013 by the head of Sungdong Tax Office, which exceeds the KRW OO, among the imposition of the penalty tax on the Plaintiff on January 13, 2012, and the imposition of the penalty tax on the gift tax on January 2, 2013, by the Head of Sungdong Tax Office exceeding the KRW OO, respectively:
C. The part of the imposition of the penalty tax on January 10, 2012 by the head of the regional tax office on RR in excess of KRW OO, among the imposition of the penalty tax on the gift tax on January 10, 2012 and KRW OO, among the imposition of the penalty tax on the gift tax on January 2, 2013.
All cancellations.
2. The plaintiffs' remaining claims are all dismissed.
3. Of the costs of lawsuit, 17/18 shall be borne by the Plaintiffs, and the remainder by the Defendants, respectively.
Cheong-gu Office
The imposition of additional gift tax on January 18, 2012 and on December 10, 2012, imposed by the Head of Jung-gu Tax Office on the Plaintiff E-W shall be revoked. The imposition of additional tax on the gift tax on January 13, 2012 and the additional tax on the gift tax on January 2, 2013 by the Head of Sung-dong Tax Office against the Plaintiff E-W shall be revoked. The imposition of additional tax on the gift tax on January 13, 2012 and the additional tax on January 2, 2013 by the Head of Sung-dong Tax Office against the Plaintiff E-W is revoked. The imposition of each imposition of the additional tax on the gift tax on January 10, 2012 and the additional tax on the gift tax on January 2, 2013 by the Head of Sung-dong Tax Office against the Plaintiff E-W is revoked.
Reasons
1. Details of the disposition;
(a) Paid-in capital increase process of BBB;
" 1) 김CC는 2004. 7. 16. 조QQ 및 김CC와 함께 상장법인인 주식회사 EEE의 상장주식 6,000,000주(OOOO원)를 전 사주인 황FF로부터 인수하고, 2005. 3. 28.주식회사 BBB'로 상호를 변경하였으며, 2005. 6. 1. 비상장법인인 주식회사 GGG생명과학과 포괄적 주식교환계약을 체결하고, 2005. 7. 20. 임시주주총회의 승인을 거쳐주식회사 GGG바이오'로 상호를 변경하였다(이하 상호 변경 전・후를 구분하지 않고이 사건 법인'이라 한다).", 2) 이 사건 법인은 2004. 3. 3. 이사회에서 보통주 7,905,000주를 제3자 배정방식으로 유상증자하기로 결의하고, 아래 <표1> 기재와 같이 금융감독원 전자공시시스템에 공시하였으며, 2005. 1. 24. 정정신고를 하였다.
Public notice on March 3, 2004
Items
Correction
After Correction
Class and Number of New Shares
common shares 7,905,000
common shares 7,905,000
Method of Capital increase
Third Party Allocation (Public Offering Method)
Allocation by third party (private placement method)
Date of payment for shares;
Subsequent Final Judgment
January 26, 2005
"3) On January 14, 2005, the corporation of this case decided on March 14, 2005 that the date of the subscription for new shares shall be March 14, 2005; the date of the subscription for new shares shall be 100,000,000 common shares as of February 11, 2005; however, the forfeited shares and fractional shares shall be subject to a subsequent resolution of the board of directors; the corporation of this case announced it to the electronic public disclosure system of the Financial Supervisory Service on the same day (hereinafter referred to as the "electronic public disclosure system of January 14, 2005"); and (4) the corporation of this case decided to allocate the forfeited shares related to the subscription for new shares and forfeited shares to a third party on March 12, 2005; and on the same day, the corporation announced it to the electronic public disclosure system of this case.
B. Title trust of KimCC
" 김CC는 동생인 김HH(개명 전 성명 : 김HH)를 통해 개설한 차명계좌 등을 통하여 아래 <표2> 기재와 같이 원고들을 포함한 16인 명의로 이 사건 법인의 주식을 취득하고 각 명의개서일에 명의개서를 마쳤다. 즉, 김CC는 2004. 9. 15. 백YY 명의로 430,000주를 취득하는 등 2005. 2. 11.까지 합계 4,417,076주를 취득하였으며(아래 <표2> 비고란의명의개서' 주식임), 2005. 1. 14.자 유상증자에 참여하여 주주배정으로 15,058,912주를 배정받고(아래 <표2> 비고란의당초주주' 주식임), 실권주 제3자배정으로 18,300,000주를 배정받아(아래 <표2> 비고란의제3자배정' 주식임) 합계 33,358,912 주를 취득하였으며, 2005. 12. 16. 조QQ 명의로 180,768주를 취득하였다(이하이 사건 주식'이라 한다).",<표2> 명의신탁 주식 현황
No.
title trustee
Transfer Date
Number of shares (number of shares)
Value per share of assessment;
Jinay
Original Disposition
Correction Disposition
1
Park JJ
March 15, 2005
2,500,000
OOO
Third Party Allocation
2
Song KK
March 15, 2005
1,500,000
OOO
Third Party Allocation
3
Plaintiff
AL
March 15, 2005
1,500,000
OOO
Third Party Allocation
4
조QQ
December 31, 2004
2,757,576
OOO
OOO
Change of Transfer
March 15, 2005
5,000,000
OOO
OOO
Initial Stockholders
March 15, 2005
180,768
OOO
OOO
Change of Transfer
5
YellowM
December 16, 2005
2,000,000
OOO
Third Party Allocation
6
NN
March 15, 2005
180,000
OOO
OOO
Change of Transfer
December 31, 2004
796,484
OOO
OOO
Initial Stockholders
7
PP
March 15, 2005
20,000
OOO
Change of Transfer
December 31, 2004
1,460,222
OOO
Initial Stockholders
8
IsaA
March 15, 2005
2,100,000
OOO
Third Party Allocation
9
Plaintiff
RR
March 15, 2005
2,500,000
OOO
Third Party Allocation
10
S
March 15, 2005
1,500,000
OOO
Third Party Allocation
11
MaximumT
March 15, 2005
2,700,000
OOO
Third Party Allocation
12
eU
December 31, 2004
323,000
OOO
OOO
Change of Transfer
March 15, 2005
2,123,959
OOO
OOO
Initial Stockholders
13
V
December 31, 2004
311,500
OOO
OOO
Change of Transfer
March 15, 2005
2,190,33
OOO
OOO
Initial Stockholders
14
W
March 15, 2005
2,000,000
OOO
Third Party Allocation
15
XX
December 31, 2004
85,000
OOO
OOO
Change of Transfer
March 15, 2005
1,227,914
OOO
OOO
Initial Stockholders
16
Y
September 15, 2004
430,000
OOO
Change of Transfer
February 11, 2005
10,000
OOO
Change of Transfer
March 15, 2005
2,260,000
OOO
OOO
Initial Stockholders
Total
37,956,756
C. Taxation
1) 서울지방국세청장은 2011. 7. 21.부터 2011. 12. 23.까지 김CC에 대한 개인 및 재산제세통합조사를 실시한 후 관할세무서장에게 ① 이 사건 주식의 명의선탁에 따른 증여세를 부과하고, ② 김CC의 이자소득 및 기타 소득(주식회사 ♤♤ 주식 2,600,000주 양도계약 해지에 따라 위약금 OOOO원 받음)에 종합소득세를 부과하도록 제세결정상황표를 통보하였다.
"2) Accordingly, based on Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the "former Inheritance Tax and Gift Tax Act"), the head of the Defendant Central Tax Office, on January 18, 2012, issued a gift tax OOO (including additional tax) with respect to the Plaintiff E-W, on January 13, 2012, the head of the Sungdong Tax Office dismissed the Plaintiff E-SOO (including additional tax) with respect to the gift tax on the Plaintiff E-L on January 13, 2012, the head of the Defendant Jeondong Tax Office, on January 10, 2012, imposed and notified OOOO(including additional tax on the Plaintiff E-R) on each of the instant dispositions (hereinafter collectively referred to as the "each of the instant dispositions"), but the Plaintiff filed an appeal on March 21, 2012, respectively.
4) Meanwhile, the Defendants revoked the additional tax amount ex officio during the instant lawsuit, and stated the type of and grounds for calculation of the additional tax in the tax payment notice, etc. on December 10, 2012 (the Defendant’s Vice-Tax Office) and the same amount of additional tax on January 2, 2013 (the Defendant’s Sungdong Tax Office and the District Tax Office) re-exempt and notified the same amount of additional tax.
[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, 12, 13, 16, 17, 18 (including various numbers; hereinafter the same shall apply), Eul evidence 1 through 4, Eul evidence 1, 3, 4, Eul evidence 1, 3, 4, 5, and the purport of the whole pleadings, as a whole.
2. Whether each of the dispositions of this case is legitimate
A. The plaintiff's assertion
(1) The non-existence of tax avoidance purpose
Even if KimCC acquired the instant stocks under its own name, it does not constitute an oligopolistic shareholder of the instant corporation. As such, it cannot be deemed that the instant stocks were left out of the position of oligopolistic shareholder liable for secondary tax liability due to title trust, and there was no lack of dividend received from the instant corporation, and thus, there was no avoidance from the progressive tax rate pursuant to global income tax on dividend income. The transfer income tax and securities transaction tax are faithfully paid for part of the transfer income by transferring the instant stocks in a short period, and the possibility that KimCC may avoid the transfer income tax beyond the requirement of a major shareholder is merely the result of tax reduction likely to occur after the title trust. As such, it cannot be the basis for determining whether there was a tax avoidance purpose at the time of the title trust. Article 200-2 (1) of the former Securities and Exchange Act (repealed by Act No. 8635, Aug. 3, 2007; hereinafter the same) provides for the Financial Services Commission and the Exchange to freely dispose of the instant stocks for the purpose of title trust and the Exchange.
Even if KimCC’s shares were to be transferred outside the major shareholder’s requirements through title trust, if they were to be transferred outside the company’s name, they constitute subject to capital gains tax [Article 94(1)3 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)]. The KimCC planned to sell shares held in title by some members including the Plaintiff, in the case of 14,300,00 shares held in title trust, which are the shares held in title trust, to be sold outside the company at the time of title trust, so at least the above shares were not avoided capital gains tax, and the capital gains tax and securities transaction tax were paid after actual transfer of the above shares. In this regard, each disposition of this case is unlawful.
(2) Illegal assertion of the method of calculating the gift value
Article 63(1) of the former Inheritance Tax and Gift Tax Act and Article 52-2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621, Feb. 22, 2008; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act"), if any cause such as capital increase or merger occurs within two months before or after the evaluation base date, the evaluation method varies. In this case, the prior meaning of the capital increase is that the capital increase is to increase the company's capital by issuing shares. Thus, the concept that is close to the capital increase is the date of the increase of the company's capital increase. In full view of the fact that the date of the occurrence of the capital increase is the date of the payment of the stock price, the date of the capital increase is the date of the increase.
Even if the date of payment of shares cannot be considered as the date of capital increase, as in the instant case, in cases where capital increase occurs after a shareholder allocation method but the forfeited shares occurred, and the board of directors adopted a resolution to allocate forfeited shares through a third party, it is the same as the resolution to newly increase the reasons. Therefore, it is reasonable to view the date of resolution by the board of directors on disposal of forfeited shares (in this case, March 12, 2005) as the date of capital increase as the date of occurrence.
Therefore, each of the dispositions of this case made on different premise is unlawful.
(3) Claim on additional tax
(A) Claim of defective assessment and notice
The Defendant imposed an additional tax on the Plaintiff without notifying the Plaintiff of the type and basis of calculation of the additional tax, and thus, the imposition of the additional tax is unlawful.
(B) Justifiable assertion of existence
Since KimCC paid capital gains tax and securities transaction tax on the above 14,300,000 shares sold outside the country, it is reasonable to deem that there was a justifiable reason that the Plaintiff did not report and pay gift tax on the above shares, in full view of the following: (a) KimCC did not have any tax avoidance; (b) the right to dispose of the above shares was exercised by KimCC; and (c) the transfer price was reverted to KimCC; and (d) there was no perception that the above shares were donated to the same title truster as the Plaintiff; (b) it is reasonable to deem that there was a justifiable reason that KimCC did not report and pay gift tax on the above shares; (b) the Plaintiff did not have any right to dispose of the shares; and (c) the Plaintiff was transferred to another person regardless of his/her will and could not have known that there was no duty to report and pay gift tax on the shares; and therefore, (d) there was a justifiable reason that the Plaintiff did not report and pay gift tax on the above shares. Therefore, penalty
B. Relevant statutes
It is as shown in the attached Form.
(c) Fact of recognition;
1) The instant corporation promoted capital increase with capital increase on January 14, 2005 in order to resolve the problem of capital transfer by -OO in the year 2005.
2) The instant corporation changed the number of shares issued in the process of issuing new shares to a listed corporation and recognized the transfer of ownership in the investigation process by KimCC, which appears to have been made on the date of each acquisition of the instant shares.
3) The KimCC purchased and sold the shares of the instant legal entity as listed in Table 3 below, and the share ratio of the instant legal entity to the instant legal entity, including those in the instant shares and those in the name of KimCC, trusted to 16 persons including the Plaintiffs, is as listed in Table 4 below.
Details of purchase and sale of shares of the corporation in this case.
Classification
Period of sale
Number of shares (number of shares)
Amount (won)
Purchase
Within the Chapter
From August 26, 2004 to August 12, 2005
2,031,200
OOO
Paid-in capital
March 14, 2005
37,058,912
OOO
Sub-committees
39,090,112
OOO
Sale
Within the Chapter
From September 17, 2004 to September 14, 2005
18,425,910
OOO
The airspace outside the territory (ZZ)
June 1, 2005, July 20, 2005
16,000,000
OOO
Theft
March 31, 2005
4,300,000
Sub-committees
20,300,000
OOO
Profit Profit Profit
OOO
Details of shares of KimCC (including borrowed-name shares)
Reference Date
Number of shares owned (States)
Total issued shares (States)
Equity ratio (%)
December 31, 2004
Total Stocks
4,400,876
15,066,200
29
name of principal
40,010
2.92
December 31, 2005
name of principal
1,012,768
62,140,740
1.62
4) The KimCC reported and paid capital gains tax and securities transaction tax on the shares sold outside the country without going through a securities president as shown in the following Table 5:
Details of return and payment of transfer income tax on Table 5.
title trustee
Number of shares (number of shares)
Transfer Income Tax (including local income tax)
Securities Transaction Tax (won)
Date of Payment
Amount (won)
Date of Payment
Amount (won)
MaximumT
2,700,000
November 8, 2005
OOO
August 10, 2005
OOO
Song KK
1,500,000
November 30, 2005
OOO
OOO
RR
2,500,000
November 28, 2005
OOO
OOO
이QQ
2,100,000
November 18, 2005
OOO
OOO
W
2,000,000
November 25, 2005
OOO
OOO
AL
1,500,000
November 30, 2005
OOO
OOO
YellowM
2,000,000
November 10, 2005
OOO
OOO
Total
14,300,000
OOO
OOO
5) In relation to the shares of this case, the omission details of transfer income tax for the year 2005 are as follows:
Details of omission in filing a return on the transfer income tax.
Title holder
Number of shares (number of shares)
Transfer Value
Acquisition Value
Necessary expenses
Capital gains (won)
The amount paid at a fixed rate;
CC Kim
4,995,500
OOO
OOO
OOO
OOO
XX
1,412,914
OOO
OOO
OOO
OOO
S
1,500,000
OOO
OOO
OOO
OOO
개지 Kim
2,700,000
OOO
OOO
OOO
OOO
NN
1,272,074
OOO
OOO
OOO
OOO
PP
1,733,292
OOO
OOO
OOO
OOO
eU
2,514,590
OOO
OOO
OOO
OOO
V
2,529,963
OOO
OOO
OOO
OOO
Park JJ
1,765,957
OOO
OOO
OOO
OOO
Y
2,797,130
OOO
OOO
OOO
OOO
SongK and 5 others
14,300,000
OOO
OOO
OOO
OOO
OOO
조◆◆
2,245,952
OOO
OOO
OOO
OOO
OOO
Total
39,767,372
OOO
OOO
OOO
OOO
OOO
[Reasons for Recognition] Uncontentious Facts, Gap evidence Nos. 6, 7, and 8, and the purport of the whole pleadings is determined.
1) As to the non-existence of purpose of tax avoidance
A) The legislative intent 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 tax justice is realized by effectively preventing the act of tax avoidance using the title trust system. As such, the proviso of the same Article shall apply only where the purpose of the title trust is not included in the purpose of the tax avoidance. In this case, the burden of proving that there was no purpose of the tax avoidance. Therefore, the fact that there was no purpose of the tax avoidance can be proven by means of proving that there was a purpose other than the purpose of the tax avoidance. However, as the nominal owner who bears the burden of proof, the nominal owner who bears the burden of proof has a clear purpose irrelevant to the tax avoidance to the extent that there was no purpose of the tax avoidance in the title trust, and has to prove that there was no tax avoidance at the time of the title trust or there was no tax avoidance at the time of the future (see Supreme Court Decision 2004Du11220, Sept. 22, 2006).
On the other hand, Article 94 (1) 3 of the former Income Tax Act, Article 157 (4) of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 18988 of August 5, 2005) is a major stockholder even if listed stocks are listed stocks.
In other words, it is difficult for one shareholder who owns stocks of a corporation and his relative or a person with a special relationship to acquire 3% or more of the total amount of shares issued by the corporation as of the end of the fiscal year immediately preceding the fiscal year in which the transfer date of the stocks, etc. belongs, or one shareholder or other shareholders as of the end of the fiscal year immediately preceding the fiscal year in which the transfer date of the stocks, etc. belongs, to impose capital gains tax on transfer of the relevant one shareholder and other shareholders in cases where the total market value of the stocks owned by the relevant corporation is not less than OO, or transfer of the stocks to other shareholders than OO. B). In light of the above facts, it is difficult to conclude that the KimCC held the stocks of this case and realized profits by selling them for a short period, and that it is difficult for the Plaintiffs to freely sell the stocks of this case to acquire more than 5% of the total market value of the relevant corporation's stocks under the name of 3rd shareholder or 5% of the transfer income tax.
2) As to the allegation of illegality in the method of calculating the gift value
A) The purport of the statute
Article 60 of the former Inheritance Tax and Gift Tax Act provides that the value assessed by the method of appraisal under Article 63 (1) 1 (a) and (b) of the same Act shall be deemed the market price. Article 63 (1) 1 (a) of the former Inheritance Tax and Gift Tax Act provides that the value of shares and equity shares traded at the Korea Stock Exchange shall be the average market price per day before and after the same date: Provided, That in calculating the average amount of shares, where it is inappropriate to adopt the same as the average amount of shares before and after two months before and after the base date of appraisal; Article 63 (2) 1 (a) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the average amount of shares and equity shares shall be calculated under the conditions as prescribed by the Presidential Decree among the two-month period before and after the base date of appraisal; and Article 52-2 (1) 1 (b) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that the same shall not apply to cases where causes, such as capital increase or merger, have occurred before the base date.
However, there is a method of allocating shares and allocating shares to a third party, and it is not clear that the company's capital increase through the issuance of shares is the date of occurrence of any cause such as the increase in the company's resolution and public announcement of the company's capital increase, the plan and public announcement of the issuance of new shares and the base date, the resolution of the board of directors on the third party allocation, the payment of shares and the registration of the increase in the company's capital, etc., and accordingly there is a change in the evaluation period. Accordingly, there is a difference in the evaluation period (i.e., the plaintiffs' payment date of shares, the date of cancellation of rights in the case of the method of allocating shares, the date of the third party allocation, and the date of
As a matter of principle, given that there is a public announcement of capital increase, the parties who trade shares, taking into account the price decline following the increase in the number of shares, the public announcement of capital increase seems to have a significant impact on the formation of the stock price. However, in the case of stock allocation method, shareholders have the right to participate in the allocation of shares on the basic date. On the other hand, a listed corporation has the right to participate in the purchase of shares by two days before the basic date, and even if shares are purchased on the first one day before the basic date, the value of shares per one day before the basic date is lower than the value of shares per two days before the basic date. The beginning price of stock trading on the first day after the basic date shall be determined within a certain period of time on the basis of the closing price before the date of issuance of shares (the average price before the first day after the date of issuance of shares) because there is no reason to decrease the value of shares before the 9th day before the basic date of issuance of new shares (the 9th day before the date of issuance of shares).
In the case of this case, if the capital increase and the third party allocation of forfeited stocks are made together by the method of stockholders allocation, the public announcement of the capital increase has already been announced to increase the number of shares to be issued and the capital increase has already been made, and since the stock price is newly formed due to the stock fluctuation measures following the method of stockholders allocation, the resolution of the board of directors for the allocation of third party thereafter seems not to have any special influence on the already formed stock price (the third party who conducts stock transaction knowing the fact of the capital increase, it is reasonable to see that it is the day following the date on which the reason such as the capital increase has occurred, such as the capital increase and the capital increase has already been made," and
Article 418(2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “The issuance of new shares by a third party shall be limited to cases where it is necessary to achieve the managerial purpose of the company, such as the introduction of new technology, the improvement of financial structure, etc.” (see Article 418(2) of the Commercial Act). Therefore, the payment of new shares by a third party shall be deemed to be limited to cases where a shareholder’s right to control the company held in proportion to the shares held by a third party, and the net asset value of shares or shares formed by the combination of new and old shares due to the occurrence of new shares shows the dilution effect of shares that are lower than the previous shares (see Article 418(3)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act). Therefore, since the third party’s issuance of new shares by a resolution of the board of directors and the public notice date have a significant impact on the formation of shares price, the Plaintiff shall be deemed to be the date when the reasons for calculating the capital increase by a third party have occurred.”
The capital increase by the initial shareholder and the third party in relation to the shares held in the title trust as of March 15, 2005 was all the date of the cancellation of rights on February 7, 2005 during the two-month period prior to March 15, 2005, which is the base date for appraisal (as seen in the above, the new stocks allocation base date is February 11, 2005, and it is a legal holiday from February 8, 2005 to February 10, 2005) and the date following the day on which the cause, such as the capital increase, etc. of rights occurred. Thus, the period subject to appraisal shall be from February 7, 2005 to May 15, 2005; the purport of the entire statement in subparagraph 1 as to the statement in subparagraph 1; and the assessment value per share during the above period shall be the Owon.
Nevertheless, the defendants deemed to be "the date on which a cause, such as Etha, etc., occurred as of January 14, 2005, which was the date of the resolution by the board of directors, unlike the initial allotment to shareholders with respect to the shares allocated to a third party, such as the plaintiffs in the title trust held on March 15, 2005," and calculated the value per share, which is the assessment value per share during the above period, as from January 17, 2005 (the holidays between January 15, 2005 and January 16, 2005) to May 15, 2005, as the assessment period, as the gift amount per share during the above period, is calculated as the gift amount as the assessment value per share as of May 15, 2005, which is unlawful."
A) As to the assertion of defects in the assessment and notice
In full view of the purport of the entire pleadings as to Gap evidence Nos. 13, 17, and 18, it is recognized that the defendants did not state the type of additional tax and the grounds for calculation in the tax payment notice of this case.
However, as seen earlier, the Defendants cancelled the imposition of additional gift tax ex officio during the proceeding of this case, and re-assessment and notification of the same amount of additional tax by stating the type of additional tax and the grounds for calculation thereof. Thus, the Plaintiffs’ assertion on this part is without merit, premised on the fact that there was an error of omission of stating the type
B) As to the assertion that justifiable grounds exist
(1) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates a return, tax liability, etc., as prescribed by the Act without justifiable grounds, and the taxpayer’s intention or negligence is not considered, and it does not constitute a justifiable reason (see Supreme Court Decision 2013Du1829, May 23, 2013).
(2) As long as the Plaintiffs, the nominal owner, pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act, are deemed to have donated shares by the KimCC, the actual owner, by acquiring the instant corporation’s shares under the name of the Plaintiffs, and transferring the ownership under the name of the Plaintiffs, the Plaintiffs are obligated to report and pay gift tax. The circumstances asserted by the Plaintiffs constitute the KimCC, which did not bear the duty of report and payment of gift tax, or the Plaintiffs’ claim constitutes either the Plaintiff’s land or mistake under the laws and regulations, and thus, there is no justifiable reason for the Plaintiffs to not perform the duty
4) Justifiable tax amount and the scope of revocation
If the reasonable tax amount is calculated by calculating the gift amount per share to the plaintiffs as an OOOO won, as described in the table 7 below, the principal tax for the gift tax is OOO won, the additional tax for the additional tax is OOO won (=additionaladditional additional tax for unfaithful return), the principal tax for the gift tax is OOO won, the additional tax for the additional tax in the case of the plaintiff AnOOL(=additionaladditional additional tax for unfaithful return + additional tax for unfaithful return + OOOOO won). In the case of the plaintiff AnoR, the principal tax for the gift tax is OOO won, and the additional tax is OOOO won (=additional won for additional tax for negligent return + additional tax for unfaithful return). Thus, each disposition of this case should be revoked within the scope that exceeds the above amount.
The detailed statement of tax amount calculation in accordance with the table7
【Plaintiff-W】
Classification
Decisions
Details of calculation
Amount of gift tax
OOOE
OOOOwon x OOO
Tax Base
OOOE
calculated tax amount
OOOE
OOOwon + (OOOwon - OOO) x 20%
Additional Tax on negligent tax returns
OOOE
OO x 20%
Additional Dues
OOOE
OOO members ¡¿ 3/1000 ¡¿ 240 days;
【Plaintiff-L】
Classification
Decisions
Details of calculation
Amount of gift tax
OOOE
OOOOwon x OOO
Tax Base
OOOE
calculated tax amount
OOOE
OOOwon + (OOOwon - OOO) x 20%
Additional Tax on negligent tax returns
OOOE
OO x 20%
Additional Dues
OOOE
OOO members ¡¿ 3/1000 ¡¿ 240 days;
【Plaintiff-R】
Classification
Decisions
Details of calculation
Amount of gift tax
OOOE
OOOOwon x OOO
Tax Base
OOOE
calculated tax amount
OOOE
OOOwon + (OOOwon - OOO) x 20%
Additional Tax on negligent tax returns
OOOE
OO x 20%
Additional Dues
OOOE
OOO members ¡¿ 3/1000 ¡¿ 240 days;
3. Conclusion
Therefore, the plaintiffs' claims of this case are justified within the scope of the above recognition, and they are accepted, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.