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명의신탁한 주식을 상속받은 후 장기간 명의개서하지 않은 것을 새로운 명의신탁으로 보아 과세한 처분의 당부
조세심판원 조세심판 | 2013-07-23 | 조심2013중2661 | 상증
[Case Number]

[Case Number] Trial 2013 middle 2661 (Law No. 24, 2013)

[Items]

[P] No. 3] Admonishment (type of decision)

[Summary of Decision]

[Determination] Article 45-2 of the Inheritance and Gift Tax Act provides that in a case where a person who acquired the ownership of property fails to transfer the ownership in the name of the actual owner, the nominal owner shall be deemed to have been donated by the actual owner on the day following the end of the year following the year in which the date of acquisition of ownership falls, and the fact that the title owner is presumed to have the purpose of tax avoidance is prescribed to be presumed to have the purpose of tax avoidance, there was no error of disposition imposing a second gift tax on the property

[Related Acts]

[Related Acts] Article 45-2 of Inheritance Tax and Gift Tax Act

【Reference Decision】

[Reference Decision] Trial Decision 2012west 2552/ Trial Decision 2013da2658/ Trial Decision 2013da2659/ Trial Decision 260/ Trial Decision 2013/ Trial Decision 2662/ Trial Decision 2013da263/ Trial Decision 2013da2664/ Trial Decision 2013da26555

【Determination following Decision】

[Determination following] Trial Decision 2013J 2660/ Trial 2013/ Trial 2013/ Trial 2662/ Trial 2013/ Trial 2013/ Trial 2663/ Trial 2013/ Trial 2658/ Trial 2013/ Trial 2659

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. On November 4, 2011, the claimant(s) succeeded to the total number of shares issued by a securities-listed corporation that was under a title trust and managed by POO to KimOO, etc. (hereinafter “instant shares”), but the claimant did not change the title of the shares, although he/she succeeded to the total number of shares issued by a securities-listed corporation that was under a title trust with POO, etc. (hereinafter “instant shares”), on the other hand, the claimant did not change the title of the shares.

B. Even if the claimant acquired the outstanding shares on February 21, 2007, the disposition agency deemed that it again trusted the title of the third-lane for the non-transfer of ownership in its name until December 31, 2008, which is the end of the acquisition date of the following year, and notified the title trustee of the total amount of the gift tax on January 1, 2009. On the other hand, the registration agency notified the title trustee of the total amount of OO of the gift tax on the gift on January 1, 2009. On February 13, 2013, the claimant (the claimant succeeded to the taxation of Ma KimO's portion) as stated in the “List of Claim List.”

C. The claimant appealed and filed an appeal on May 3, 2013.

2. Opinion of the claimant and the disposition agency;

A. The claimant's assertion

(1) The claimant only held shares held by the deceased POO through inheritance, and there was no new taxation case after the time of the initial title trust. Thus, this disposition constitutes a clear double taxation, which is regarded as a donation by the title trustee on a single title trust transaction, and thus, is subject to the imposition of this disposition.

In addition, the issue shares are inherited shares, and they are not in the name of the former owner even after the acquisition of the shares. Thus, the general rules of the Inheritance Tax and Gift Tax Act 45-2-04 (the point of time of title trust of the title trust property) cannot be applied.

(2) The instant disposition is clearly unreasonable to impose gift tax on the title trustee on the ground that the heir’s failure to implement a transfer of title on the ground that the heir does not implement a transfer of title on the ground that “the provision on the constructive gift of title trust shall not apply to the decedent’s failure to enter into the title trust under the name of the third party after the inheritance commences.”

(b) Opinions of disposition agencies;

(1) Even after the claimant succeeds to the shares, he/she newly acquired 88,420 shares in 207 by continuing to use the name of the title trustee without a change of entry. Moreover, it is confirmed that 67,140 shares were transferred and used as living expenses, etc., the heir KimO et al. actively managed the shares of the title trust inherited by the heir KimOO et al., without a change of entry, and thus, the disposition imposing tax thereon is justifiable

In addition, Article 45-2-04 of the General Rules of Inheritance Tax and Gift Tax Act does not limit "acquisition" to sale and purchase, so it is naturally applicable to inheritance.

(2) The interpretation presented by the claimant (the National Tax Service’s written 4 team-511, March 7, 2006) is inconsistent with the following interpretation (the National Tax Service’s laws and regulations and regulations-969, July 22, 2011), and there is no room to apply since it was already deleted on September 16, 201, and the disposition imposed by the agency is justifiable.

3. Hearing and determination

A. Key issue

propriety of the disposition imposing gift tax by deeming that the title trust shares are not transferred for a long time after inheritance as a new title trust;

(b) Related Acts, etc.;

Article 45-2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) (1) In cases where the actual owner and the nominal owner are different from the property (excluding land and buildings; hereafter the same shall apply in this Article), the value of the property shall be deemed to have been donated to the actual owner by the nominal owner on the date when the actual owner and the nominal owner are registered, etc. as the nominal owner (where the property is subject to a change of title, referring to the date following the end of the year following the year in which the date of acquisition of ownership falls), notwithstanding Article 14 of the Framework Act on National Taxes, on the date when the actual owner

1. Where any property is registered in another person's name without the purpose of tax avoidance, or transfer is not made in the name of the actual owner who acquired the ownership;

2. Where converting the name of the actual owner from among the stocks or equity shares (hereafter in this Article, referred to as the “stocks, etc.”) during the period not later than December 31, 1998 (hereafter in this Article, referred to as the “suspension period”) for the stocks, etc. entered in the stockholders’ list or the stockholders’ list in the name of another person or the transfer of which is entered pursuant to the trust or agreement before January 1, 1997: Provided, That the same shall not apply to the case where converting the titles of the person having a special relationship with the stockholders or investors of the corporation which issued the relevant stocks, etc. (hereafter in this Article, referred to as the “shareholders, etc.”) or of the person

(2) Where any property is registered, etc. under another person's name, and a transfer of ownership is not made under the name of the actual owner, and where the name of stocks, etc. is not converted under the name of the actual owner during the grace period, it shall be presumed that there exists an object of tax avoidance: Provided, That the same shall not apply to cases where the transferor files a report on the details of change of ownership along with a return on the tax base of transfer income under Articles 105 and

*: In applying Article 45-2(1) of the Act, when a person who acquires the ownership of an asset requiring a change of ownership, such as stocks, enters into a title trust for another person in the name of the third person, the title trust shall be deemed to have been made on the date when the title trust is transferred. If the title is registered in the name of the former owner without a change of ownership in the name of the actual owner by the end of the year following the year in which the date of acquisition falls, the former owner shall be deemed to have been held in a title trust on the date following the end of the year following the

C. Facts and determination

(1) The following facts are revealed in full view of the review data of the disposition agency, such as the list of the status of taxation decision, and the gift tax decision letter, etc.

(A) The claimant’s vice oO held title trust with the KimO, etc., and died on February 21, 2007, but the claimant and the mother KimO acquired the real ownership of the shares at the above inheritance date, although the claimant and the mother KimO acquired the real ownership of the shares at the above inheritance date, the transfer of ownership was not made until December 31, 2008 at the end of the next year.

(B) The claimant disposed of 67,140 shares out of the outstanding shares, and the mother KimO died on November 4, 201.

(C) The disposition agency imposed the total amount of gift tax on the title trustee in relation to the initial title trust of the shares at issue, designated and notified the claimant to jointly and severally liable for tax payment, and imposed inheritance tax on February 21, 2007 in addition to inherited property.

(D) In addition, the disposition agency imposed the total amount of the gift tax on the title trustee in relation to the fact that the claimant did not transfer the outstanding shares until December 31, 2008, and imposed the total amount of the gift tax on the title trustee, and made the claimant designated the joint and several taxpayers and notified the payment.

(2) On the other hand, the claimant asserts that the taxation disposition is unfair because it constitutes a double taxation, but it is not allowed to interpret the tax law in accordance with the principle of no taxation without the law or the requirement of non-taxation or tax exemption, and interpret the tax law extensively or analogically without reasonable grounds (see, e.g., Supreme Court Decision 92Nu18603, Feb. 22, 1994).

Article 45-2 of the Inheritance Tax and Gift Tax Act provides that, in cases where a person who acquired the ownership of property fails to transfer the ownership under the name of the actual owner, the value of the property shall be presumed to have been donated by the actual owner on the day following the end of the year following the year in which the date of acquisition of the ownership falls, and thus, it shall be presumed that the purpose of tax avoidance exists. There is no reason to deem otherwise to limit the “acquisition” only to sale and purchase, and exclude the case of inheritance, etc., such as inheritance. In light of the fact that the claimant disposes of part of the shares at issue, the existence of the shares held in title trust even at the time of the commencement of the inheritance is deemed to have already been known, not because the ownership was transferred to the title holder without compensation, but rather because the donation of title trust property is levied on the tax policy purpose to block the irregular

Despite the claimant's acquisition of ownership by inheritance of the outstanding shares on February 21, 2007, the disposition imposing the gift tax on the non-transfer of ownership by December 31, 2008, which is the last day of the year following the date of acquisition is deemed not to have been erroneous (the same purport is the same as the court below's 2012west 252, Jan. 11, 2013).

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for a trial has no merit as a result of the review.

Attached Form

List of Claim Claim

OO

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