Early High Court Decision 2008J 2795 ( November 19, 2008)

deemed donation due to stock title trust;

In order to apply the regulations on deemed donation from a nominal trust of shares before January 1, 2004, the register of shareholders must enter into the register of shareholders, and the statement of changes in shares to be submitted at the time of corporate tax return cannot be the same as the register of shareholders.

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

1. The Defendant’s imposition of KRW 76,545,00 on December 1, 2007 against the Plaintiff on December 30, 2002 shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

It is the same as the disposition.

1. Circumstances of the disposition;

A. On December 28, 2002, the Plaintiff transferred 25,000 shares (hereinafter referred to as “instant shares”) owned by Na to the Plaintiff at par value at KRW 5,000 per share, instead of paying 128,129,534 won of the debt owed by Na to the Plaintiff by Na, and the Plaintiff entered into a payment contract in lieu of paying 128,129,534 won of the debt owed by ○○ Construction Environment Co., Ltd. (hereinafter referred to as “○○ Construction Co., Ltd.”), and thereafter, Na requested the redemption of the instant shares, the Plaintiff shall repurchase the instant shares to the sum of the amount equivalent to the interest accrued at the bank deposit interest rate until the said debt and redemption was made, and the demand for redemption shall be valid for three years from the date of the contract, and the Plaintiff shall not sell the instant shares to any other person for three years from the date of the contract (hereinafter referred to as “payment contract in lieu

B. After that, on December 30, 2002, Na made a final return on capital gains tax on May 31, 2003 by transferring the instant shares to 5.000 won per share. The head of ○○ Tax Office conducted an investigation on capital gains tax on the transfer of the instant shares, and as a result, without any documentary evidence on payment related to the instant shares transaction, deemed it as a deemed donation or free donation under a title trust, and notified the Defendant as taxation data.

C. The defendant shall pay for the shares of this case under the Inheritance Tax and Gift Tax Act (Article 63 (1) of the Inheritance Tax and Gift Tax Act, December 18, 2002)

On December 1, 2007, 76,545,00 won was assessed as 12,935 won per share with the increase of 30% by applying the stock increase appraisal rule under Article 63 (3) of the same Act, which is the appraised value by 9,950 won per share, which is the supplementary evaluation method stipulated in the Act (wholly amended by Act No. 6780). On December 30, 2002, the Plaintiff decided and notified the gift tax of 76,545,00 won per share with respect to the donation (hereinafter “instant disposition”).

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Director of the Tax Tribunal for adjudication on July 14, 2008, but was dismissed on November 24, 2008.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1, 10, Eul evidence Nos. 1 to 4 (including provisional number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

(A) In order to impose gift tax by applying the provision on the constructive gift of title trust property under the Inheritance Tax and Gift Tax Act, the actual owner and the nominal owner of the shares are different. Here, the nominal owner refers to the person who is the nominal owner or the nominal owner indicated on the share certificate, i.e., the nominal owner. the nominal owner. However, there is no fact that the Plaintiff changed the title of the shares, and thus, the provision on the constructive gift of

(나) 원고는 ◇◇건설환경으로부터 하청을 받거나 공동으로 조경석공사를 시공하면서 주로 나AA으로부터 그 공사대금을 수령해 왔는데, 1998년 5월경부터 나AA으로부터 수령하지 못한 공사대금이 누적되어 합계금 128,129,534원에 이르게 되자 이의 변제를 독촉하는 과정에서 이 사건 주식을 채권담보의 목적으로 양도받기로 하고 이 사건 대물변제계약을 체결한 것이고, 또한 나AA은 ◇◇건설환경 이외에도 ▽▽조경산업 주식회사, ♤♤산업 주식회사를 특수관계자 포함 50% 이상의 지분을 소유하면서 실질적으로 운영하고 있었는데, 중소기업청의 '단체수의계약운용규칙'의 개정에 따라 관급공사의 수주를 위하여 이 사건 주식을 원고에게 양도한 것일 뿐이고, 원고가 나AA으로부터 이 사건 주식을 증여받은 사실은 없다.

(C) Even if the transfer of the instant shares can be deemed as a constructive gift or gratuitous donation through title trust, the Defendant assessed the instant shares, while evaluating the shares, and even if the shares in the △△ Construction Environment were sold to DoD from KimB on December 30, 2002 to DoD on December 30, 2002, the market price of the instant shares was calculated in accordance with the supplementary and supplementary methods, disregarding it. Since the Plaintiff did not transfer a title to the instant shares, it was deemed that the instant shares were acquired on January 1, 2003 pursuant to Article 41-2 (1) of the former Inheritance Tax and Gift Tax Act amended by Act No. 6780 on December 18, 202 and Article 9 of the Addenda, the share appraisal rate of 15% should be applied to the share appraisal rate of 30% on December 30, 202, it erred by applying the share appraisal rate to 30% on December 30, 2002.

(2) Defendant’s principal

(A) Even though the Plaintiff and BA did not have any bonds and debt relationship, but BA actively committed tax avoidance by title trust to the Plaintiff, and even if one of the requirements for deemed donation of title trust did not actually take place, the instant shares are indicated in the statement of change of stocks, etc. submitted by the construction environment at the corporate tax base return in 2004 in the name of the Plaintiff. As such, Article 45-2(3) of the former Inheritance Tax and Gift Tax Act amended by Act No. 7010, Dec. 30, 2003, which provides that the decision of change of ownership should be made based on the statement of change of stocks, etc. does not include only the subject of the shares trusted after April 1, 2004, which was the enforcement date, but also the subject of change of ownership is also registered as a shareholder in the statement of change of stocks, etc. after January 1, 2004.

(B) Even if the provision on the constructive gift of title trust property is not applicable because the instant shares cannot be deemed to have been trusted to the Plaintiff, it is difficult to view that the Plaintiff was transferred the instant shares at a cost solely on the ground that the Plaintiff and AA entered into the instant payment contract in accord with the Plaintiff, and there is no other evidence of payment related to the instant shares transaction, and thus, the Plaintiff was given a free donation of the instant shares from BA.

(C) The transaction between KimB, DamageCC, and NaD asserted by the Plaintiff cannot be deemed as transaction exampleable transactions between related parties, and the donation time shall be deemed as December 30, 2002 and evaluated as January 1, 2003, and all of them evaluated as January 1, 2003. Thus, there is no error in the evaluation of the value of the instant stock.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the provision on donation of nominal property is applied

(A) Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (wholly amended by Act No. 6780, Dec. 18, 2002) provides that “where the actual owner and the nominal owner are different in property that requires registration, etc. for the transfer or exercise of the right, in principle, the value of the relevant property shall be deemed to have been donated to the actual owner on the date on which the registration, etc. is made to the nominal owner.” However, in the case of registered shares, the transfer cannot be set up against the association company unless the name and address of the acquisitor are entered in the register of shareholders (Article 37(1) of the Commercial Act). Thus, insofar as a transfer is not made to another person who is not the actual owner of the register of shareholders, the actual owner and the nominal owner are different in property that requires registration, etc. for the transfer or exercise of the right, it cannot be deemed that the actual owner and the nominal owner are the same as the change in the list of shareholders, which is a document to be submitted when the tax base and amount of corporate tax were reported.

Meanwhile, Article 45-2 (3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003) provides that where the list of shareholders, etc. is not prepared, a transfer shall be determined based on the statement of changes in stocks, etc. submitted to the head of the district tax office having jurisdiction over the place of tax payment. However, the above provision applies from the portion of submission of a statement of changes in stocks, etc., stating that the change in the name of shareholders was made after January 1, 2004 (Article 10 of the Addenda). Thus, the above provision shall not apply to the deemed donation under the title trust in the transfer from December 30, 202, which is subject to the instant taxation. However, if it can be applied retroactively as the defendant's assertion, this part of the defendant's assertion is rejected.

(B) Therefore, we examine whether the transfer of title to the instant shares was made, and there is no evidence to acknowledge that the Plaintiff was recorded as a shareholder in the register of shareholders in the △△ Construction Environment, and instead, in full view of the purport of the entire pleadings as to the entry in the evidence No. 17, it can be acknowledged that the transfer of title to the Plaintiff’s name was not made in the register of shareholders in the △△ Construction Environment following the transfer of the instant shares. As long as the Plaintiff did not enter the instant shares as a shareholder in the register of shareholders in the △△ Construction Environment,

(2) Whether the donation is a free donation

(A) Generally, in a lawsuit seeking revocation of the disposition imposing tax, the burden of proving the facts of taxation requirements should be imposed on the taxable person. However, if the facts alleged in light of the empirical rule in the specific lawsuit process are revealed, the other party cannot be readily concluded that the pertinent disposition is an unlawful disposition that fails to meet the taxation requirements (see, e.g., Supreme Court Decisions 97Nu13894, Jul. 10, 1998; 2003Du14284, Apr. 27, 2004); and the former Inheritance Tax Act (wholly amended by Act No. 5193, Dec. 30, 1996); so, the taxation requirements of the gift are satisfied by acquiring property through a gift contract, such as the receipt of share certificates, and thus, the other party cannot be deemed to have satisfied the taxation requirements of the gift through a donation of shares, which merely satisfies the requirement of stock certificates, and the transfer of shares to the company did not meet the requirement of taxation requirements (see, e.g., Supreme Court Decision 97Nu675.

(B) Examining these legal principles on the premise of such legal principles, it may be deemed that the requirements for taxation were satisfied in that there is no clear evidence that paid the transfer price of the instant shares.

However, after the Plaintiff entered into the instant payment contract on December 28, 2002, the Plaintiff and BA made a final return on capital gains tax on December 30, 2002 that the transfer of the shares was made by BA, and the transfer of ownership in the Plaintiff’s name was not made. As seen earlier, the Plaintiff entered into the instant payment contract on the shares in question with Gap’s 2, 4 through 9, 11 through 13, 21 through 35, and the purport of the entire pleadings as a whole, comprehensively taking account of the following facts: (i) the Plaintiff continued to receive the payment from the construction environment in question from 1998 to 203, and received the payment for the shares in cash from 40,000, and (ii) the Plaintiff was unable to pay the Plaintiff the payment for the shares in question with 40,000,000,0000,0000,000).

According to the above facts, it is reasonable to deem that the Plaintiff entered into the instant payment contract for the purpose of securing the claim for its construction price, and that the instant shares were transferred from Na, and it cannot be viewed that the Plaintiff was given free of charge a donation of the instant shares from Na.

D. Sub-committee

Therefore, the instant disposition imposing gift tax on the Plaintiff by deeming the transfer of the instant shares as a deemed donation or donation under a title trust is unlawful without having to further examine other issues.

3.In conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.