Seoul Administrative Court 201Guhap7731 ( October 20, 2011)

early 2010west2030 ( December 29, 2010)

Provisions on deemed donation due to transfer security right trust can not be applied.

(As with the judgment of the first instance court), new stocks are allocated in the name of the plaintiff for the purpose of securing the return of loan, and even if the donation is deemed to have been made, there is no tax avoidance purpose, and in the case of title trust, gift tax may not be imposed by applying the provision on deemed donation

2011Nu28327 Revocation of imposition of gift tax

XX

The Director of the Pacific District Office

Seoul Administrative Court Decision 201Guhap7731 decided July 20, 2011

March 6, 2012

April 13, 2012

1. The defendant's appeal is dismissed.

2. Costs of appeal are borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposing gift tax of KRW 000 against the Plaintiff on April 13, 2010 shall be revoked.

2. Purport of appeal

The decision of the first instance is revoked and the plaintiff's claim is dismissed.

1. A cited part;

The court's explanation on the instant case is based on the following: (a) the agreement No. 6 of the first instance court's decision referred to in the 9th instance court's decision in the form of "opportun or implied agreement"; and (b) the reasoning for the first instance court's decision is identical with that for the defendant's argument and the addition of the decision on the defendant's argument, and thus, (c) the same is cited in accordance with Article 8(2

2. The addition;

The defendant asserts that the agreement between the fund investors, such as XX and Jung-AA, does not stipulate that the above allocated shares are offered as security, and that the fund investors, such as the closing under the above agreement, are not the secured party for the allocated shares, but the status of the subscriber. In fact, the fund investors, such as Jung-A, etc., paid the shares directly and receive the above shares in their names and are registered in the shareholders' book (which received shares in the plaintiff's name). As the fund investors, such as Jung-A, etc. want to acquire the above shares, they cannot be said to have acquired the above shares for the purpose of transfer security.

In light of the financing agreement of this case and the content and purport of the investment agreement of this case, although it is acknowledged that the aforementioned allocated shares are not indicated as secured goods, the financial investors, such as AA, etc., pay the subscription price for new shares to the non-party company under the name of the third party designated by it, and completed the transfer of title after the actual receipt of the shares, are paid as investment funds to the non-party company under the 20% of the subscription price for new shares and the transfer of title after the acquisition of the above allocated shares is completed, the shareholders who actually received the above allocated shares are paid the subscription price for new shares. As such, it is recognized that CCC, which acquired the ownership of the above allocated shares, provided the above allocated shares as collateral to the financial investors, etc. under the funding agreement of this case and the investment agreement of this case. Thus, the defendant's assertion that the above allocated shares were without merit.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.