National Tax Service Review Donation 2011-0022 (Law No. 22, 2011)

There is no evidence to prove that the change of title was made in the name of the plaintiff, and thus does not constitute title trust.

Even if the fact of transfer of shares is stated in the statement of change of stocks, etc., there is no evidence to prove that the change of entry was made in the name of the plaintiff, and the fact inquiry of the Korea Securities Depository with respect to the Korea Securities Depository is deemed to have no shares of the plaintiff at the time of acquisition of shares

2011Guhap35613 Revocation of Disposition of Imposing gift tax, etc.

XX Kim

The Director of Gangnam District Office

April 25, 2012

May 11, 2012

1. The Defendant’s imposition of gift tax of KRW 000 against the Plaintiff on December 1, 2010 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On March 13, 2007, the Plaintiff entered into a contract with the United StatesA to acquire shares of 1,500,000 won (hereinafter “instant shares”) and the management right of 000 won (hereinafter “instant shares”). The status of stock changes was entered in the statement of stock changes, etc., and was published on the website of the Financial Supervisory Service on March 14, 2007.

B. After that, the Plaintiff transferred the instant shares to the Nowon-CC on July 19, 2007. The status of stock changes was stated in the statement of stock changes, etc., and was published on the website of the Financial Supervisory Service on the same day.

(C) The head of the Chungcheong District Tax Office: (a) applied the provision of Article 45-2(3) 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") on the presumption of gift of title trust property under Article 45-2(3) 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") to the non-party company from September 6, 2010 to October 16, 2010; (b) the Defendant notified the Plaintiff of the imposition of gift tax by applying the provision on the presumption of gift of title trust property under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4521, Mar. 13, 2007).

E. On April 29, 201, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service, but received a decision of dismissal from the Commissioner of the National Tax Service on July 25, 2011.

F. The non-party company is preparing a register of shareholders.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1 to 3, 6 and 7, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Since the shares of this case were not transferred to the Plaintiff in the name of the Plaintiff in the register of shareholders of the non-party company, Article 45-2(1) of the former Inheritance Tax and Gift Tax Act premised on the transfer

(2) Since the non-party company prepares the register of shareholders, Article 45-2(3) of the former Inheritance Tax and Gift Tax Act cannot be applied on the premise that the register of shareholders is not prepared.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

First, we examine whether the former Inheritance Tax and Gift Tax Act relating to transfer of entry in the register of shareholders is applicable.

(1) As to Article 45-2(1) of the former Inheritance Tax and Gift Tax Act

(A) The transfer of registered shares cannot be set up against the company unless the acquisitor’s name and address are entered in the register of shareholders. Thus, insofar as the transfer of ownership is not carried out, it does not constitute “where the actual owner and the nominal owner are different in the property requiring a transfer or exercise of rights, which is the requirement of deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act.” Furthermore, it cannot be said that the statement on the change of shares, which is a document to be submitted when filing the tax base and tax amount of corporate tax, cannot be the same as the list of shareholders. Thus, even if the statement on the change of shares stated the change of shares in the statement on the change of shares, it cannot be said that the change of ownership was made (see, e.g

(B) Although the Plaintiff’s transfer of the instant shares was stated in the statement of changes in stocks, etc. of the non-party company, there is no evidence to prove that the transfer of ownership was made in the name of the Plaintiff. Rather, according to the fact-finding on the Korea Securities Depository, it can only be recognized that the Plaintiff owned 2,100 shares as of August 20, 200 (the Plaintiff owned 2,100 shares as of July 19, 2007, since the instant shares were transferred to the Nowon-CC on July 19, 2007).

Therefore, Article 45-2(1) of the former Inheritance Tax and Gift Tax Act cannot be applied on the premise that the transfer of title was made.

(2) As to Article 45-2(3) of the former Inheritance Tax and Gift Tax Act

Article 45-2(3) of the former Inheritance Tax and Gift Tax Act provides that “Where a corporation, etc. fails to prepare a register of shareholders, etc.” regardless of ownership or transfer of shares, the provision under the premise of transfer cannot be applied. Thus, to supplement the deficiency of taxation, it is a newly established provision that can be taxed on the basis of the specification of changes in shares, etc. submitted at the time of filing a report of tax base for corporate tax in order to supplement the deficiency of taxation. In light of the principle of no taxation without the law, the interpretation of the tax law is not permissible to interpret the tax law as prescribed by the law, and it is not permissible to expand or analogically interpret or analogically without reasonable grounds (see, e.g., Supreme Court Decision 2002Du6781, May 27, 2004).

Therefore, as seen earlier, since the non-party company prepares the register of shareholders, Article 45-2(3) of the former Inheritance Tax and Gift Tax Act cannot be applied.

(3) Therefore, the instant disposition imposed under Article 45-2(1) or (3) of the former Inheritance Tax and Gift Tax Act on the premise that the transfer of ownership was made or that the register of shareholders was not made is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.