early 2011west0299 ( October 19, 2011)

Since stock sale procedures were put with the intent to supervise them, they do not constitute title trust.

The instant shares are sold and agreed to be appropriated for the repayment of the loan claim, and the proceeds were entered into the securities account with the intent to supervise the procedures for sale of the shares, and there was no tax avoidance purpose at the time of the entry into the securities account.

2011Guhap23085 Revocation of Disposition of Imposition of Gift Tax

Kim XX et al.

The Director of Gangnam District Office

April 13, 2012

May 18, 2012

1. Each disposition imposing gift tax of KRW 000 on October 5, 2010, which the Defendant decided and notified to the Plaintiffs on October 5, 201, 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 July 19, 2007, Plaintiff KimA lent KRW 200 to ParkB on and after the due date for repayment, October 30, 2007, and on the other hand, the right of pledge was established against shares issued by ParkB Co., Ltd. (hereinafter referred to as “ XX”) in order to secure the above loan claim (hereinafter referred to as “the instant loan claim”). around that time, Plaintiff KimB received KRW 800,00 shares from ParkB around that time.

B. On December 27, 2007, Plaintiff KimA, who was not paid the instant loan claim, entered 730,000 shares out of 80,000 shares (hereinafter “instant shares”) into a securities account in the name of Plaintiff KimCC established with a securities company instead of the said shares (hereinafter “instant shares”).

C. As a result of the investigation into the source of the funds for acquiring the Plaintiff KimCC, the Defendant determined that the Plaintiff KimCC held that the instant shares were trusted to the Plaintiff KimCC on October 5, 2010, by applying Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “Inheritance Tax and Gift Tax Act”) to the Plaintiff KimCC on December 27, 2007, determined and notified KRW 00 of the gift tax on the gift of December 27, 2007, and notified the Plaintiff KimA of the designation as a joint taxpayer by applying Article 4(4) of the Inheritance Tax and Gift Tax Act on the same day, and at the same time, notified the Plaintiff KimA of the payment of KRW 000 of the said gift tax (hereinafter “each of the instant dispositions”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 5, 8, 11, 12, Eul evidence No. 4, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

1) The plaintiffs' assertion

A) The Plaintiff KimA sold the instant shares with ParkB and agreed to appropriate the price for the repayment of the loan claims against ParkB, and entered the said shares into the securities account in the name of the Plaintiff KimCC with the intent to supervise the sale procedure of the said shares. Although the said shares were not repaid in lieu of the said shares from ParkB, the Defendant applied the provision on the constructive gift of nominal trust under Article 45-2(1) of the Inheritance Tax and Gift Tax Act on the premise that Plaintiff KimA is the actual owner of the said shares, each of the instant dispositions should be revoked.

B) In light of all the circumstances, including the fact that, around December 2007, Plaintiff KimA, who held approximately 1.9 million shares issued in XX ( approximately 12% of the total number of outstanding shares) around December 2007, in order to prevent the decline of the share price due to the publication of the said monetary transaction relationship, etc., Plaintiff KimA had no choice but to enter the instant shares into the securities account in the name of Plaintiff KimCC, a third party, and even if Plaintiff KimA held the instant shares in its own name, there was no room for bearing liability for tax payment or deemed acquisition as an oligopolistic shareholder, and the fact that the said shares were entered into the securities account in the name of Plaintiff KimCC and the share price continuously decreased after the entry into the securities account in the name of Plaintiff KimCC, it is evident that Plaintiff KimA did not have the purpose of tax avoidance. Accordingly, each of the instant dispositions should be revoked

2) The defendant's assertion

A) On July 19, 2007, Plaintiff KimA lent KRW 000 to GaB, and thereafter established a pledge right on the said shares after being delivered from GaB to 800,000 shares issued in XX, the said loan claim was not repaid, and then the said 730,000 shares out of 80,000 shares were repaid to GaB during 2007 and acquired the ownership of the said shares.

B) The existence of the purpose of tax avoidance is not determined on the basis of whether there was a tax avoidance ex post, but on the basis of whether there was a possibility of tax avoidance at the time of the nominal election, and whether there was an inevitable reason irrelevant to the tax avoidance. In light of the fact that Plaintiff KimA was liable to pay capital gains tax on the transfer of the instant shares to a major shareholder who owns not less than 5% of the issued shares in XX, while Plaintiff KimCC was not a major shareholder, and thus, Plaintiff KimCC did not have a duty to pay capital gains tax on the transfer of the said shares, it is obvious that Plaintiff SPCC was acting in title for the purpose of tax avoidance.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the first argument of the plaintiffs

In general, since the tax authority has the responsibility to prove the facts of taxation in the tax litigation, the burden of proving that the person who was designated as the actual owner by the tax authority has actually acquired the ownership of the nominal trust property is the tax authority in the taxation under the provision on constructive gift of nominal trust property under Article 45-2 of the Inheritance Tax and Gift Tax

In light of the above facts, although the above 12 and 13 evidence were stated in the 20AB shares issued by the 70th GaB, the 10th GaB shares were used to acquire the above 80th GaB shares under the 20th GaB's name, and the 10th GaB shares were used to acquire the 7th GaB shares under the 10th GaB's name. However, the 7th GaB shares were not sold under the 10th GaB's name and the 10th GaB's e.g., the 7th GaB's e., the 1st e., the e., the 7th GaB shares were sold under the 1st e.g., the e., the 1st e., the e., the e., e., the e., e., the e., the e., e., the 700 Ga shares.

2) Judgment on the second argument by the plaintiffs

Article 45-2(1) of the Inheritance Tax and Gift Tax Act provides that “In case where the actual owner or the nominal owner of a property, which requires a transfer or exercise of the right, is different, the value of the property shall be deemed to have been donated to the actual owner on the date when the registration, etc. is made to the actual owner, notwithstanding Article 14 of the Framework Act on National Taxes: Provided, That this shall not apply to the case falling under any of the following subparagraphs: Provided, That this shall not apply to the case where the title holder registers, etc. the property in the name of another person or does not transfer it in the name of the actual owner who has acquired the ownership without the purpose of tax avoidance.” The legislative purport of the above provision is that “it is to realize tax justice by effectively preventing the act of tax avoidance using the title trust system.” Since it is recognized as an exception to the substance over form principle, it is recognized that the title trust was made for reasons other than the purpose of tax avoidance, and

In light of the following circumstances, even if the Plaintiff Kim Young-chul was the actual owner of the shares of this case, it was difficult to determine that the transfer income from the transfer of the shares of this case was 00 won due to the physical division of the medical device business sector from October 2007, since the above acknowledged facts, Gap evidence No. 8, and the testimony of Park Jong-B by witnesses, the main purpose of which was to bring the shares of this case into the securities account under the name of Plaintiff KimCC was to sell the shares of this case on the KOSDAQ market, i.e., ① the main purpose of which was to bring about the shares of this case into the securities account under the name of Plaintiff Kim Young-CC, ② the share price of this case was continuously rapidly lowered since July 2007, and finally, the price of this case was 00 won due to the transfer of the shares of this case, ③ the market price of this case was 560,000 won around December 208, 2008.

3) Sub-decisions

Therefore, under the premise that Plaintiff KimA is the owner of the instant shares, each of the instant dispositions by the Defendant, which deemed that the said Plaintiff was in title trust with Plaintiff KimCC for the purpose of tax avoidance, is unlawful, and thus, it should be revoked.

3. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition.