Cho Jae-2013-west-4770 (Law No. 14.28, 2014)

It is difficult to deem that shares have been donated from the representative director without compensation.

It is difficult to deem that the shares were donated without compensation because it was revealed that the shares were acquired in this case by acquiring funds.

Donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2015Guhap52968 Revocation of Disposition of Imposition of Gift Tax

IsaA

O Head of tax office

July 16, 2015

August 27, 2015

1. The Defendant’s gift tax of KRW 6,89,280 on September 13, 2013 against the Plaintiff (Additional Tax) for the year 2010, which was paid by the Plaintiff

The imposition of KRW 3,144,399 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. SS enterprise (hereinafter “SS enterprise”) was established on December 10, 1993 and its main business purpose is the US and waterproof construction business, and the total number of its issued stocks was 10,500 shares (5,000 won per share) at the time of its establishment, but was changed to 70,500 shares on April 20, 2005 through capital increase for new shares.

B. The statement on the change of stocks, etc. submitted at the time of filing a corporate tax return for the business year 2010 (hereinafter “the statement on the change of stocks, etc.”) submitted by the SS company at the time of the filing of the corporate tax return for the business year 2010 (hereinafter “the instant statement on the change of stocks, etc.”) stated that the total of 25,246 shares of the SS company (hereinafter “the instant shares”) was transferred from stuffs, KimO, JeonO, JeonO, KimO, KimO, KimO, the Plaintiff, and HanO (hereinafter “new holders”) during the instant business year (hereinafter “the instant issues”).

C. From May 6, 2013 to June 19, 2013, the head of the SS Tax Office confirmed whether the new holders paid the transfer price to the previous holders with respect to the transfer of the shares listed in the statement of stock fluctuation (hereinafter “instant tax investigation”). The SS enterprise stated the reasons for the change of shareholders as stated in the above statement is not the transfer, but the gift, and confirmed that “I want to allocate shares to the employees in the form of employee shares for the development of the company by boosting the morale of employees. I confirmed that I want to allocate shares to the employees for the 16,920 shares in the form of employee shares. I confirmed that I submitted a confirmation document under the name of EO (No. 11-1) stating “O's 14th of December 2010, 2010,” ② 19,606 O's 210th of December 14, 2010, O2000's O's O's signature confirmation document.

D. On December 14, 2010, the Director of the SS Tax Office: (a) On December 14, 201, the new holders including the Plaintiff.

Since each of the above shares is deemed to have been donated, each of the relevant tax office having jurisdiction over the domicile of the new holders (hereinafter referred to as the "head of the competent tax office") was notified of the taxation data.

E. The chief of the competent tax office including the defendant is a supplementary assessment method prescribed by the Inheritance Tax and Gift Tax Act.

the market price at the time of December 14, 2010, evaluated as 47,907 won and donated by the SS enterprise’s shares.

After calculating the estimated value of gift tax, the new holders were imposed a gift tax (hereinafter collectively referred to as "the imposition of gift tax for the first time"). Among them, the Defendant imposed a gift tax of KRW 6,89,286 on the Plaintiff on September 13, 2013 (including additional tax for negligent return, KRW 1,350,977, KRW 1,793,422).

F. The new holders, including the Plaintiff, filed an appeal with the Tax Tribunal on their dissatisfactions; and

‘KoreaO’s shares of 27,495 EO owned by EO around 2006 KRW 328,50,000;

After purchasing 21,721 shares of HanO from HanO in KRW 217,210,00,000 each, change of entry

It was argued that it was not completed and it was actually owned by the previous holders, and that it was only submitted a detailed statement of stock fluctuation as if the stock was transferred from the previous holders.

G. On April 28, 2014, the Tax Tribunal has paid for the instant stocks from OO, etc.

Review of whether it has obtained or not, the tax base and tax amount shall be corrected according to the results thereof, and the remainder

The claim is dismissed."

H. Accordingly, the director of the SS Tax Office conducted a reinvestigation from June 9, 2014 to July 4, 2014, and thereafter, conducted a reinvestigation.

6,211 states that the shares of this case have been transferred from HanO to HanO is the cause of the donation.

The remaining 19,035 Shares (25,246 shares - 6,211 shares) of the shares of this case are not transferred at a low price but at a low price among the related parties, and all of the shares of this case were deemed to have been donated to the new holders and notified the head of the competent tax office of the taxation data by deeming that the previous holders have been donated to the new holders,

(i) The chief of the competent tax office on July 17, 2014, imposed the initial gift tax on a new title holder (Provided, That the same is applicable);

6,211 Re-audits to the effect that all the donations are justified

The head of XX Tax Office notified the above 6,211 gift in the disposition of gift tax.

The part to be transferred at low price by changing the reason for disposal to reduce or correct it, and the KoreaO has reduced or corrected it by the above reduction.

The correction disposition is not dissatisfied with).

(j) The new holders, including the Plaintiff, etc., of the Tax Tribunal at the time of notification of the results of the above reexamination.

Although a request for adjudication was made, it was dismissed on December 19, 2014.

(k) On September 29, 2014, the Plaintiff filed the instant lawsuit, and the remainder of the new holders of the case also around that time.

Each gift tax disposition is pending in court by filing a lawsuit seeking revocation of each gift tax disposition.

[Ground for Recognition: Facts without dispute, Gap evidence 1, 2, 5 through 11, Eul evidence 1, and pleadings

[Purpose of the whole]

2. The assertion and judgment

A. The plaintiff's assertion

In 2006, 328,500,000 shares of SS enterprises by EO 27,459 shares of SS enterprises:

The previous holders, such as purchase by HanO of 21,721 shares of SS enterprises in KRW 217,210,000, etc.

From the purchase of the instant shares, etc., the transfer of ownership is not completed after paying the purchase price.

The shares of this case are held in the name of the previous holders, and the report of the corporate tax for 2010

At the time, the instant shares were submitted without the consent of the new holders, including the Plaintiff, by stating that the instant shares were transferred to the new holders from the previous holders during the pertinent business year. At the time of the instant tax investigation, a false document was prepared and submitted as if the previous holders and the new holders were donated on December 14, 2010. In other words, the actual owners of the instant shares are not OO, but OO, and the Plaintiff did not have donated the instant shares from OO.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Generally, since the tax authority bears the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of a tax imposition disposition, the tax authority should directly prove the facts of taxation requirements in a specific lawsuit or clarify the presumed facts of taxation requirements in light of the empirical rule (see Supreme Court Decision 97Nu13894, Jul. 10, 1998). We examine whether the Plaintiff received the gift of the instant shares from EO on December 14, 2010 in light of the aforementioned legal principles.

2) The fact that the instant shares were indicated in the instant statement on the change of shares was transferred to the Plaintiff from EO during the business year 2010 that the instant shares were transferred to EO.O. In addition, there is no dispute between the parties to the instant statement on the fact that the Plaintiff did not pay EO any consideration for the instant shares. In addition, the part on the right side where the name of EO was printed out of the EO’s certificate.

Since there is no dispute between the parties that the O's seal imprint is affixed, the act of affixing the seal is presumed to be based on the intention of the OO, and further, it is confirmed in accordance with Article 358 of the Civil Procedure Act.

Inasmuch as the authenticity of the entire document is presumed to have been established (Evidence A, No. 38) of O, the O, even under the testimony of O

The plaintiff, a dependent, requested the issuance of a seal imprint for the reason that it is necessary in relation to the shares of the SS company, and the above certificate was submitted to the plaintiff by the EO directly at the time of the instant tax investigation. In light of such circumstances before and after, the above certificate, there is a lack to reverse the presumption of the establishment of the above certificate only with the testimony of the EO, which seems consistent with the plaintiff's assertion that the above seal imprint was made without the EO's intention or without the EO's intention, and there is no other evidence to reverse it). The authenticity of the EO certificate can be acknowledged.

3) However, in light of the following circumstances, the above facts alone are insufficient to recognize that the Plaintiff received a donation of the instant shares from the O on December 14, 2010, and any other evidence to prove otherwise.

shall not be effective.

① The new holders, including the Plaintiff, donate the shares of this case from the existing holders.

It argues that there is no receipt of gift tax, and argues that gift tax is imposed on the shares of this case.

Considering the value, the amount of gift tax, etc., the new holders of this case are actually subject to EO

If shares have been donated, there is no reason to deny the fact of donation.

② Whether the new holders, including the Plaintiff, are the actual holders of the instant shares

There are sufficient circumstances to suspect whether or not the instant tax investigation has been carried out. In other words, the said new holders did not know the contents of the statement of stock fluctuation before the instant tax investigation was carried out.

In addition, there is no reason to believe that the said new holders exercise voting rights or receive dividends.

③ According to the Defendant’s disposition, EOO’s 236,421,045 won on December 14, 2010;

1.68,872,175 won, UO, and KimO-O, each of which is equivalent to KRW 101,323,305 won, KimO, the Plaintiff, and the Plaintiff, lose the status of the largest shareholder of the SOC. However, if the Plaintiff was excluded, EOO did not have any relationship with himself/herself with the former representative director, and it is difficult to find any special motive or reason to donate the shares of this case to the new title holder, who is an employee of the company that did not have been employed as the representative director, even if he/she had been employed as the former representative director, it is difficult to find out any special motive or reason to give the shares of this case to the new title holder (and as seen later, as seen earlier, the KimO was not an employee of SO at the time of December 14, 2010).

④ There are circumstances consistent with the Plaintiff’s assertion that EX had been transferred the instant shares to AO by deeming that EX was an adequate factor to operate SSS companies by itself, leading to their own behindness. In other words, EX was 66 years old as of the date of birth on resident registration at 2006, and SS companies’ sales and net profit were KRW 2.77 million in 2004,000,000,000 and KRW 8.5 million in 205 business years. At the time of 2006, AO was 2.10,000,000,000 won, and 3.0,000,000 won was 1,60,000,000 won, and 3.0,000,000 won was 2.6,000,000 from January 1, 2006 to 1, 206, 2010,000

(5) HanO shall be a new loan from a corporate bank on September 30, 2010 excluding himself/herself.

The amount of gift tax imposed on the account holder was directly paid to the account holder. However, as alleged by the Defendant, the previous account holder donated the instant shares to the new account holder, and the KoreaOO did not have any relation to the instant shares (except for 1,410 shares, which were stated that the shares were transferred from O to O). As such, the gift tax imposed on the new account holder excluding OO itself is its own funds.

unless there is a special reason to pay the shares of this case from OO.S.

As the actual owner of the purchase and the representative director of the SS corporation, illegal to the new owner who is his employee

There is sufficient room to regard that gift tax imposed is responsible for and paid.

6. According to the results of re-audit of the SOC, 6,211 shares in the name of the KoreaOO shall be conducted by the KoreaO.

The gift was not a gift, but a follow-up disposition was made on this premise. The contents of the HanO's certificate are inconsistent with this and thus its credibility was significantly damaged. In addition, the O's certificate was prepared in the same form at the same time and submitted to the same other party. In addition, the O's certificate stated that the shares were donated for the amount of fraud of employees of SS company. According to the statement of the change of shares in this case, the transfer of shares was completed on December 14, 2010. According to the statement of the change of shares in this case, KimO among the new holders of the title, was not an employee of SS company at the time of December 14, 201 (the MaO's membership date was March 2, 2011).

A. In addition, as of December 14, 2010, a considerable number of employees who had worked for SS companies at the time of SS companies appears to have been in addition to new holders of the company (excluding GOO). It is rare in cases where only some employees are donated shares of the company to boost the morale of employees. Moreover, it is not natural that EOO prepared the above confirmation document when it donated shares to employees. Furthermore, even according to the language and text of this OO certificate, it is intended to form an employee stock ownership association pursuant to Article 2 subparag. 4 of the Framework Act on Labor Welfare to allow the employee stock ownership association to acquire the shares of SS companies and do not intend to directly acquire the shares of SS companies in the name of employees. Considering these circumstances, it is difficult to give high credibility as evidence of taxation in the O certificate.

7. It may support that KoreaO has paid the stock transfer price to EO or KoreaO.

In light of the fact that there were 30 billion won for the above 100,000 won and 300,000 won for the above 10,000 won and 300,000 won for the above 10,000 won and 300,000 won were paid to the above 10,000,000 won and 10,000,000 won were paid to the above 10,000,000 won and 30,000,000,000 won were paid to the above 10,000,000,000 won and 10,000,000,000,000 won were paid to the 10,000,000,000,000,000,000,000,000 won were more than 10,000,000,000 won.

4) Accordingly, the instant disposition appears to be an unlawful disposition that did not meet the taxation requirements.

of this chapter.

3. Conclusion

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