National High Court Decision 2007Du2794 ( November 01, 2007)

Although it was imposed on the presumption of donation for the acquisition fund, it is not possible to claim the agenda of title trust donation in litigation.

This case is presumed to be a donation of the acquisition fund of stocks, and the new argument is the donation of title trust, so each disposition ground differs from basic facts, so it is not allowed to change the reason for disposition.

The contents of the decision shall be the same as attached.

Article 41-2 (Presumption of Donation of Title Trust Property)

Article 34 (Cases Where It is difficult to Recogniz that Assets have been Acquired with Self-Support)

1. The Defendant’s disposition of imposition of gift tax of KRW 672,00,000 against the Plaintiff on April 6, 2007 shall be revoked.

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

The same shall apply to the order.

1. Circumstances of the disposition;

가. 서울지방국세청장은 주식회사 ▢▢크레디트(이하 '소외 회사'라고 한다)에 대한 세무조사 결과, 원고가 2002. 6. 21. 강○규 외 10인(이하 '강○규 등'이라고 한다)으로 부터 소외 회사의 주식 160,000주(이하 '이 사건 주식'이라고 한다)를 취득함에 있어 원고가 이 사건 주식을 취득할만한 소득원이 없을 뿐만 아니라 취득자금의 출처를 제시하지 못한다는 이유로 그 취득자금 1,600,000,000원(1주당 10,000원X160,000주)을 다른 사람으로부터 증여받은 것으로 추정하여 이를 피고에게 과세자료로 통보하였고, 이에 피고는 2007. 4. 6. 원고에 대하여 위 과세자료에 따라 상속세 및 증여세법 (2003. 12. 30. 법률 제7010호로 개정되기 전의 것) 제45조를 적용하여 증여세 672,000,000원의 증여세를 부과・고지하였다(이하 '이 사건 처분'이라고 한다).

B. On June 25, 2007, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the National Tax Tribunal on June 25, 2007, but was dismissed on November 1, 2007.

[Ground for Recognition: Facts without dispute, Gap evidence 1, 2, Eul evidence 1-1, 2, Eul evidence 2, Eul evidence 3,

Each entry of evidence No. 4-1, 2, and No. 5-13, and the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

(a)the master of the plaintiff;

The defendant's provisional disposition is illegal for the following reasons:

(i)the first proposal;

The Plaintiff did not intend to receive a donation of the acquisition fund of the instant shares. The Plaintiff merely did not acquire the instant shares by stealing the Plaintiff’s name in order to maintain the governance structure, and the Plaintiff did not exercise any right to the instant shares. Therefore, there was no taxable object of gift tax, which is the donation of the instant shares or the funds for their acquisition, since the Plaintiff did not exercise any right to the instant shares.

(ii)the second place;

Even if the instant shares were deemed to have been in title trust as they were deemed to have been donated to the Plaintiff, it cannot be presumed that the instant shares were the gift of title trust since △△△△ was not the purpose of maintaining the governance structure of the non-party company, and there was no tax avoidance purpose (In addition, even if the instant shares are presumed to have been donated as the gift of title trust, there is no sales room to objectively reflect the exchange value as the non-listed shares, and thus, it is unlawful to determine the tax base by immediately deeming the face value of the instant shares as the value of donated property as the value of the instant shares in accordance with Article 5(5) of Enforcement Decree of the Inheritance Tax

(b) Related statutes;

Article 41-2 (Presumption of Donation of Title Trust Property)

Article 34 (Cases Where It is difficult to Recogniz that Assets have been Acquired with Self-Support)

C. Determination

1) According to the fact-finding results on Gap evidence 5, Eul evidence 6-2, Eul evidence 3, Eul evidence 1, 2, Eul evidence 4-1, 2, and Eul evidence 4-2, witness △△△△△△△△, △△△△, ○○○, ○○○, and west-on testimony of this court and Kim Chang-nam of this court, and the above luminous exchange, and each fact-finding conducted a title trust with the main shares of this case for its employees. However, during the process of the merger of the above companies into the non-party company, some of the above employees were dead, the above employees were not aware of the facts of this case in order to maintain their own share ratio among the total shares issued by the non-party company, and the accounting officer of the non-party company transferred the non-party company's name to the non-party company's 1, 3, and 4-2 cannot be acknowledged as having been transferred to the plaintiff 1, 3, and the facts of this case's maximum shares were not otherwise acknowledged.

Therefore, the disposition of this case, based on the presumption that the Plaintiff acquired the shares of this case, was given a donation from another person pursuant to the provisions of Article 45 of the Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) on the premise that the reason for the disposition of this case is not recognized.

2) In the instant lawsuit, the Defendant added the grounds to the effect that the Plaintiff was deemed to have donated the instant shares from △△△△△△△, which was the actual owner of the instant lawsuit, pursuant to Article 41-2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002), and thus, the Defendant would first consider whether such disposition grounds are permissible.

However, in an appeal litigation seeking the cancellation of an administrative disposition, from the perspective of the substantive rule of law and trust protection for the people who are the other party to the administrative disposition, the agency can add or change other reasons only to the extent that it is recognized to have a unity of basic facts, and it is not allowed to assert a separate fact that is not recognized to have the identity of basic facts. The identity of basic facts here is determined depending on whether the basic facts were consistent with the concrete facts prior to the legal evaluation of the grounds, and social factual relations, which form the basis thereof, are consistent in the basic point (see Supreme Court Decisions 98Du18565, Mar. 9, 199; 2007Du13791, Feb. 28, 2008; Inasmuch as the factual basis of the disposition of this case is no particular financial resources of the Plaintiff, it is presumed that the Plaintiff newly acquired the shares of this case from the other party to the disposition of this case, and thus, it is different from the actual owner of this case’s assertion that each of the above grounds for disposal of this case was different from the actual owner of this case.

3) Therefore, the Defendant’s ground for disposition newly asserted cannot be a ground for disposition supporting the legality of the instant disposition, and as seen in the foregoing Section 1, the existing ground for disposition that was attributable to the instant disposition is not recognized. Therefore, without considering the remainder of the Plaintiff’s remaining assertion, the Defendant’s disposition of this case is unlawful.

3. Conclusion

If so, the plaintiff's claim is reasonable.