early 2010Gu2538 ( December 29, 2010)

No case where the mortgagee and the nominal mortgagee are different shall be deemed to be a title trust.

Since the imposition of gift tax on title trust is recognized as an exception to the substance over form principle, its application should be strictly interpreted, and where the actual mortgagee and the nominal mortgagee are different from the actual mortgagee, it cannot be interpreted that the actual owner and the nominal owner are included in the "where the nominal owner are different."

2011Guhap193 Revocation of Disposition of Imposition of Gift Tax

Hongx

O Head of tax office

August 24, 2011

September 28, 2011

1. The disposition of imposition of gift tax of KRW 111,556,820, which the Defendant rendered to the Plaintiff on April 13, 2010 is revoked. 2. The costs of lawsuit are assessed against the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The director of the Seoul Regional Tax Office entered into an agreement between August 25, 2009 and December 1, 2009 to conduct a tax investigation with respect to Lone Star M (former trade name is OO; hereinafter referred to as "Pone Star M") that is a corporation listed in KOSDAQ, and conducted a tax investigation with respect to new shares issued in an amount equivalent to 477,600 shares around December 2005 (which allocates new shares to third parties for 4,160 won per share; hereinafter referred to as "CC"), the director of the Seoul Regional Tax Office has to obtain 1,687,290,000 won for new shares issued in the name of 30,000 won for 40,000 won for 20,000 won for new shares issued in the name of 30,000 won for 40,000 won for 20,0000 won for 30,000 investors for 40,000 investors' shares.

B. Accordingly, the director of the Seoul Regional Tax Office: (a) deemed thatCC received 405,600 shares of new shares from a third party, including the Plaintiff, and held title trust with the Plaintiff, etc.; and (b) applied Article 45-2(1) 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”), and calculated the amount calculated by multiplying the number of shares allocated to the Plaintiff at 16,259 won per share price as of December 16, 2005 by the value of donated property [in the case of the Plaintiff, the value of donated property is 390,216,00 won (=16,259 won X24,000 won)] as the value of donated property; and (c) on April 13, 2010, the Defendant rendered a disposition to the Plaintiff as the head of the Seoul Regional Tax Office (hereinafter referred to as the “instant”).

C. On June 10, 2010, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal dismissed the said claim on December 29, 2010.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, 3 evidence, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-2, witness rightB's testimony, the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

The Plaintiff’s new subscription fund to participate in capital increase with the purpose of lending it to MM and securing the return of the loan was allocated to the Plaintiff under the name of the Plaintiff, and does not conclude a title trust agreement withCC. Thus, the instant disposition is unlawful.

3. Relevant statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Facts of recognition;

A. A. Around December 2005, the Lone StarM offered new shares equivalent to KRW 4,160 per share to KRW 4,160 per share of KRW 4,160. On December 12, 2005,CC concluded a financing agreement with MM to pay to MM an amount equivalent to 4% of the investment amount under the name of MM as a prior interest (hereinafter “instant financing agreement”) on the condition that MM would pay to MM an amount equivalent to 3% of the investment amount raised as a service fee in addition to the above interest (hereinafter “instant financing agreement”). The main contents of the agreement (Evidence 3) are as follows.

B. On December 8, 2005, MM concluded an investment agreement (hereinafter “instant investment agreement”) with a view to securing the principal and interest of the investment on the condition that it will deliver cashier’s checks equivalent to 20% of the subscription money to investors in order to secure the principal and interest of the investment, as the Plaintiff et al. recruited investors in the Plaintiff et al. according to the instant financing agreement, and paid an amount equivalent to 4% of the investment money as interest. The main contents of the said agreement (Evidence No. 4-4) are as follows.

C. According to the instant investment agreement, MM obtained a total of KRW 1,687,296,00 from investors of the Plaintiff, etc. with the subscription fund of KRW 1,687,296,00, and was issued a cashier’s check equivalent to KRW 338,00,00 as security under the instant investment agreement, along with the amount equivalent to 7% of the said subscription fund under the name of interest and service fee, and issued a cashier’s check equivalent to KRW 338,00,00 in accordance with the instant investment agreement, and issued the said cashier’s check to investors.

D. Meanwhile, under the instant funding agreement and the investment arrangement,CC participated in capital increase to KRW 1,687,296,000 for new shares offered and allocated KRW 405,600 among new shares issued by Lone StarM in the name of investors or a third party designated by the investors. The specific details are as follows.

E. The investors of the Plaintiff et al. sold 405,60 new shares allocated five times from December 23, 2005 to February 1, 2006 to KRW 7,425,078,440, after deducting KRW 1,687,296,00 of the invested principal from the remaining sale price, and returned cashier's checks worth KRW 5,737,782,440 of the investment principal to MP, and KRW 338,00,000,000, which have been offered as security, were returned to CC as they are.

[Basis] Facts without dispute; Gap evidence 2-3; Eul evidence 3; Eul evidence 4-4; Eul evidence 7-8; Eul evidence 10-1 through 5; Eul evidence 11; and the purport of the whole pleadings

5. Determination

A. In order to establish the proposal for a title trust donation to shares pursuant to Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, the agreement between the actual owner and the nominal owner, i.e., the agreement on the title trust to the shares, or the change of title to the nominal owner, should be made in the future under the consent or communication on the title trust to the shares. Thus, if a transfer to the nominal owner is made without the agreement on the title trust, the said provision cannot be applied (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 2008). In addition, in cases where a title trust to the shares owned by an obligor is transferred to the creditor for the purpose of securing the right to claim, the creditor holds a security right for his/her own interest, not merely holding the formal ownership on the shares, and thus,

B. In full view of the circumstances such as the facts acknowledged earlier, evidence, and the purport of the entire pleadings, it cannot be deemed thatCC has held title trust with the Plaintiff. Rather, it is reasonable to deem that the Plaintiff received the instant shares in its own name for the purpose of securing the principal and interest of its investment, and thus, the provision on deemed donation under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act cannot be applied to this case. Therefore, the instant disposition is unlawful, and the Plaintiff’s assertion is with merit.

(1) According to the instant funding agreement concluded between MM andCC, (1) MM receives and keep a cashier’s check in an amount equivalent to 20% of the investment amount (Articles 2(5) and 5(2)), and (2) new stocks to be acquired through participation in capital increase with new stocks are also allocated in the name of MM and kept by MM; (3) new stocks allocated in the name of MM and the cashier’s checks offered as security are held by CC (Article 6(11)); and (4) if the total market price of new stocks and cashier’s checks offered as security does not exceed 150% of the investment amount raised by MM is less than 150% of the total market price of new stocks and cashier’s checks offered as additional security, CC made an agreement with MM to dispose of new stocks and cashier’s checks so that it can cover the principal and interest of investment (Article 6(5)). Therefore, MM agreed to ensure the refund of the principal and interest of new stocks.

(2) According to the instant investment agreement concluded between MF and investors of the Plaintiff, etc., when MF fully redeems the investment amount to investors, investors decided to return stocks and secured goods (Article 7). Accordingly, MF was scheduled to provide investors with the security offered by CC (Article 7).

(3) In accordance with the instant investment agreement, investors, including the Plaintiff, made an investment in and out of KRW 100,000 through KRW 200,000 after deducting the agreed interest interest, and made an investment in and out of KRW 100,000 through KRW 200,000, in a third party designated by them, sold new shares and returned the remaining sales proceeds after deducting the investment principal, to MF. The MF paid the sales proceeds received from investors to CC

(4) At the time, a representative of MM, under the tax investigation in relation to the instant case, “M was in charge of mediating the relationship betweenCC and investors.” The investor stated to the effect that “M’s employee KimCC, who was in charge of the practical affairs at the time, was to keep new shares as a security for the investment amount,” and that “the investor was to keep them in custody as a security for the investment amount.”

(5) Meanwhile, a pledge may be established on shares, but it is much more easy to create a security interest by means of security by transferring the name of shares to a secured party in terms of securing and recovering the security interest.

C. The defendant asserts that the actual lender of the subscription fund of this case is the nominalB, and the plaintiff is merely the nominal lender, and the rightB was allocated new stocks in the name of the plaintiff for the purpose of transfer by means of transfer, so Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is applied. However, in light of the witness B's testimony, it is insufficient to recognize the above assertion only with the statement of No. 15-1 through No. 17 of the evidence No. 15-2, and there is no other evidence to acknowledge it, the defendant's assertion

6. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.