Since the data submitted by the plaintiffs alone cannot recognize the window dressing accounting, it is legitimate for the defendant to evaluate the evaluation of the shares of this case as a supplementary evaluation method.

Since the evidence submitted by the plaintiffs alone cannot be recognized as a window dressing accounting, the defendant cannot be deemed to have any error in assessing the value of the shares of this case.

Article 63 of Inheritance Tax and Gift Tax Act: Appraisal of Securities

2018Guhap7253 (26 September 26, 2019)

○○ et al.

○ Head of tax office

on October 29, 2019

on December 26, 2019

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The Defendant’s imposition of gift tax of KRW 143,610,610 on the donated portion on July 1, 2012, each of which was made to Plaintiff ○○○ on December 7, 2017, and against Plaintiff ○○○○ on December 14, 2017, shall be revoked.

1. Details of the disposition;

A. ○○ Incorporated Co., Ltd (hereinafter “instant company”) was a cooperative company with ○ Heavy Industries Co., Ltd from the time of incorporation on June 25, 2009 until the closure of its business on April 30, 2014.

B. On June 25, 2009, Gangwon-do, the representative director of the instant company, owned all 10,000 shares of the instant company when establishing the instant company, but, at the time, was registered in the register of shareholders as if the Gangwon-do, U.S., an employee of the instant company, owned 3,00 shares of the instant company, respectively (hereinafter referred to as “the primary title trust”).

C. On July 1, 2012, 2012, when the Gangnam ○○ and U.S. ○ withdrawn from the instant company, the Plaintiff acquired each of 1,500 shares of 3,00 shares of ○○○○○ and 3,000 shares of Gangnam ○ (hereinafter referred to as the “instant shares”) from U.S. and entered the register of shareholders as if the Plaintiffs owned each of 3,00 shares of the instant company (hereinafter referred to as the “second title trust”).

D. The Plaintiff ○○○ is a wife of the representative director of the instant company, and the Plaintiff ○○○○○ was an agent of Gangwon-do. The Plaintiff ○○○ was an internal director of the instant company from July 30, 2012 to April 30, 2014. The Plaintiff ○○○ was an agent of the instant company from July 30, 2012 to April 30, 2014. The Plaintiff ○○○ was the auditor of the instant company from July 30, 2012 to April 30, 2014.

E. As a result of the investigation conducted with respect to the title trust of the instant shares against the Plaintiffs from August 10, 2017 to September 15, 2017, the Defendant confirmed that the actual owner of the instant shares is demoted ○○.

In addition, the Plaintiffs deemed to have donated the instant shares in accordance with the provisions on deemed donation of trust property under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter “former Inheritance Tax and Gift Tax Act”). The Defendant assessed 15,254 won pursuant to Article 63(1)1(c) of the former Inheritance Tax and Gift Tax Act and Article 54 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 26069, Feb. 3, 2015; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”), and imposed an additional tax on the Plaintiff ○ on July 1, 2012 (including additional tax) on the donation of KRW 143,610,610 on the donation of the instant shares, and imposed the additional tax on the Plaintiff 160, Dec. 14, 2017 (including additional tax).

F. On January 18, 2018, the Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal for adjudication.

However, it was dismissed on June 29, 2018.

[Ground of Recognition] Unstrifed Facts, Gap evidence 1, Eul evidence Nos. 1, 2, 4 through 15, 18 through 20, 22 through 22

25, 27, 28, each statement of evidence (including branch numbers for those with serial numbers) and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The Plaintiffs did not have any agreement on the title trust of the instant shares with the Gangwon-do○○ and the Gangwon-do○.

The Plaintiffs unilaterally forged the transfer contract of the instant shares by stealing the names of the Plaintiffs, and the register of shareholders completed the transfer of title to the instant shares in the name of the Plaintiffs. Therefore, the second title trust is null and void because there is no agreement between the parties on the title trust with respect to the instant shares. Therefore, there is no room for applying the provision on deemed donation of title trust

2) Article 81-4 of the Framework Act on National Taxes prohibits abuse of the authority to conduct a tax investigation by providing for prohibition of abuse of the authority to conduct a tax investigation in principle, and even if a separate tax investigation is formally conducted, it shall be deemed a re-investigation prohibited if the substance thereof is the same subject of tax investigation. Thus, it is unlawful to conduct a re-audit of the secondary title trust in the course of tax investigation from August 10, 2017 to September 15, 2017, by re-auditing the secondary title trust in the course of tax investigation, even though it does not meet the re-audit requirements prescribed in Article 81-4 of the Framework Act on National Taxes.

of this chapter.

3) Do○○ paid gift tax based on the primary title trust, and Do○○ paid the gift tax following the primary title trust, and thereafter, no later procedure was taken by Gangwon○ through the process of terminating the primary title trust with Gangwon○○ and U.S. ○. Since the instant shares were secondary title trust under the ownership of Gangwon○ and U.S. ○○, the trustee of the primary title trust, and the ownership of the primary title trust, Do○○○ and U.S. ○○ are the secondary title truster of the secondary title trust. However, the Gangnam○ and J. ○○ were not only at the time of the secondary title trust with the Plaintiffs, but also at the later time of the secondary title trust, and no other purpose of tax avoidance was found to have existed in the secondary title trust process. Even if the instant company was Gangwon○○, the instant shares did not have any tax avoidance purpose from June 25, 2009 to 2014, and there was no national tax evasion purpose from June 21, 2014.

4) Even if there was a tax avoidance purpose at the time of the second title trust with Gangwon ○, the instant company was scheduled to discontinue its business because there was no work quantity as at the end of the business year 2013, and even at the time of the second title trust, there was no work quantity among the instant companies, including the instant company, etc., and the said company’s situation can be sufficiently estimated in light of the discontinuance of the instant company on April 30, 2014. As of December 31, 2011, the estimated amount of retirement pay of the instant company as of December 31, 201, as of December 31, 201, the said estimated amount of retirement pay of the instant company was KRW 97,947,223, and thus, the said estimated amount should be reflected in the liabilities. Accordingly, the instant company’s short-term lending of assets on its balance sheet 2011, which is appropriated as a short-term lending of assets on its balance sheet 2011.

B. Relevant statutes

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

C. Determination

1) Whether the name theft is true

The provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act shall apply in cases where the actual owner and the nominal owner register in front of the nominal owner under an agreement or communication with respect to the property which requires the transfer or exercise of the right, etc., and where the registration is unilaterally made in the name of the nominal owner irrespective of the intent of the nominal owner, such provision shall not apply (see, e.g., Supreme Court Decisions 84Nu748, Mar. 26, 1985; 95Nu13531, May 31, 1996). In such cases, if the tax authority proves only that the actual owner is different from the nominal owner, and the burden of proving that the registration, etc., as the nominal owner was made in the unilateral act regardless of the intent of the nominal owner should be established by the nominal owner (see, e.g., Supreme Court Decisions 90Nu5023, Oct. 10, 190; 2007Du15790, Feb. 14, 2009).

In light of the above legal principles, the plaintiffs also recognize that the plaintiffs were the nominal holders of the shares of this case, but they were not the de facto owners. Thus, the proof that the shares of this case were transferred to the future of the plaintiffs due to the unilateral act of a third party regardless of the plaintiffs' intent should be proved

According to the reasoning of Gap evidence No. 2 and the purport of the whole oral argument, during the process of changing the nominal owner of the shares of this case from ○○ to ○○○○○○ upon the issuance of a summary order of KRW 2,00,000 (○○ District Court Decision 2017Da13666, hereinafter referred to as "the summary order of this case") from the ○○ District Court on February 21, 2018 due to the crime of forging the share transfer and takeover contract and using it, it can be acknowledged that the above summary order became final and conclusive at that time. However, considering the following circumstances revealed by adding the aforementioned facts and evidence and evidence No. 16, 21, 48, and 51 to the overall purport of oral argument, it is difficult to view that Gangwon○○ merely by the fact that the above summary order of this case was issued, regardless of the plaintiffs' intent, it is difficult to view that it was a change of the plaintiffs to ○○○’s nominal owner of the shares of this case.

① The Plaintiff’s ○○○○ is the wife of the instant company, and the head of the Plaintiff’s ○○○○ was the strong title trust. Moreover, the Plaintiff’s ○○○ was the internal director of the instant company, and the head of the Plaintiff’s ○○ was the auditor of the instant company.

② At the time of the second title trust, the Plaintiff’s seal affixed on each share transfer contract for the instant shares prepared at the time of the second title trust.

③ Even according to the Plaintiffs’ assertion, it appears that the Plaintiffs obtained a certificate of personal seal impression and resident registration without asking for the purpose thereof, and transferred the same to ○○○○○ and the Defendant’s accountant in charge, who was the Plaintiff’s ○○○○.

④ From 2011 to 2013, Plaintiff ○○○ was paid benefits to the instant company.

⑤ In the summary order of this case, the reason why the Plaintiff’s agreement on the transfer and takeover of shares of this case, which was named under the name of ○○○ upon the Plaintiff, was recognized, appears to have been due to the fact that Gangwon○ led to the confession of criminal facts during the interrogation of suspect by the police.

④ On October 10, 2017, Plaintiff ○○○ filed a complaint with an investigative agency on the charge of the theft of name on September 29, 2017. This is immediately after receipt of a preliminary notice of taxation on September 22, 2017 after September 15, 2017 by the tax investigation of the Plaintiffs. Considering that Plaintiff ○○○ is a close relative relationship with the Plaintiffs, it is reasonable to view that Plaintiff ○○○ made a false confession with the investigative agency for the purpose of cancelling the instant disposition against the Plaintiffs.

2) Whether the instant disposition was made through a double tax investigation

The evidence submitted by the plaintiffs alone is insufficient to recognize the fact that the defendant or other tax authorities conducted a tax investigation on the same tax item and the same taxable period from August 10, 2017 to September 15, 2017, before conducting a tax investigation on the second title trust. There is no other evidence to acknowledge the fact that the defendant conducted a duplicate tax investigation on the plaintiffs. Accordingly, this part of the plaintiffs' assertion is without merit.

3) Whether there was an objective of tax avoidance in the second title trust

A) The title truster of the second title trust

The Plaintiffs asserts that the actual title truster of the second title trust agreement is not Gangwon-do○, ○○, and ○○○○. However, considering the overall purport of the arguments in the evidence as seen earlier, the actual shareholders of the instant shares appear to be Gangwon-do○○, and the fact that gift tax was paid in the first title trust process cannot be deemed to be the primary trustee of the first title trust, and that ○○ and ○○○○, a primary trustee of the first title trust, cannot be deemed to be the secondary trustee of the title trust ( there is no evidence to acknowledge that ○○ and ○○, a primary trustee of the title trust). Accordingly, the Plaintiffs’ assertion that ○○○ and ○○○ was the primary truster of the second title trust after the first title trust in relation to the acquisition of the instant shares is without merit.

B) Whether ○○○’s secondary title trust had an objective of tax avoidance

The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle with the purport of effectively preventing the act of tax avoidance using the title trust system and realizing the tax justice. Thus, the proviso of the same Article is applicable only where the purpose of tax avoidance is not included in the purpose of title trust. In such a case, the burden of proving that there was no purpose of tax avoidance exists the person who asserts it (see, e.g., Supreme Court Decisions 9Du2192, Jul. 23, 199; 2003Du13649, Dec. 23, 2004).

Furthermore, as the nominal owner who bears the above burden of proof, there was an obvious objective irrelevant to the tax avoidance to the extent that it is deemed that there was no tax avoidance purpose in the title trust, and the fact that there was no tax avoidance at the time of the title trust or in the future is proved to the extent that the ordinary person is not doubtful upon the evidence objectively acceptable and acceptable (see, e.g., Supreme Court Decision 2004Du11220, Sept. 22, 2006). Whether there was such tax avoidance purpose or not should be determined at the time of the title trust of stocks at the time of the title trust, and it should not be determined as to whether there was any tax evasion thereafter (see, e.g., Supreme Court Decision 2012Du546, Nov. 28, 2013).

In light of the above legal principles, it is difficult to view that the evidence submitted by the plaintiffs alone that there was a clear other purpose than tax avoidance or tax avoidance in the second title trust of the shares of this case, and there was no other evidence to acknowledge it (the evidence and evidence mentioned earlier, 12, 30 through 32, and 46 as follows, which can be acknowledged by adding the whole purport of the pleadings, i.e., the following facts or circumstances, i., the fact that ○○○ prepared by the company’s accountant in charge and submitted to the defendant to avoid becoming an oligopolistic shareholder, i.e., the 1,2000 won, 452, 547, 706 won, 2012, 1, 990, 210 won, 2013 through 25, 2013, 2057, 200, 2013, 200, 2013, 200, 2013).

Therefore, this part of the plaintiffs' assertion is without merit.

(iv) Whether the calculation of the amount of gift tax is appropriate or not.

A) Relevant legal principles

Article 63 (1) 1 (c) of the former Inheritance Tax and Gift Tax Act provides that "The shares and equity shares not listed on the Korea Exchange shall be appraised by the method prescribed by Presidential Decree in consideration of the assets and earnings of the relevant corporation," and Article 54 (4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the shares of the closed corporation shall be appraised by the net asset value under paragraph (2), notwithstanding paragraph (1) of the same Article," and Article 55 provides the method of calculating the net asset value

On the other hand, the burden of proving the net asset value is, in principle, a tax authority. However, in calculating the net asset value of the relevant corporation as of the date of transfer, exceptional circumstances such as the assets of the corporation are different from the balance sheet or the assets are attributable to the taxpayer.

(See Supreme Court Decision 2002Du12458 delivered on May 13, 2003, etc.)

B) Determination

(4) The above facts and circumstances are as follows. ① The company’s 201 through 2013 statements (Evidence No. 30 through 32) acknowledged by adding the aforementioned evidence and evidence No. 62 to the purport of pleading No. 15, the company’s 201 to 400, the company’s 2012, and the earned surplus No. 1990,312, 210, and 2013 were 2,357,459, and the company’s 700,000,000,000 70,000,0000 won No. 150,000,000 won and 70,000 won and 40,000 won and 70,000 won and 15,000 won and 5,00 won and 4,000 won and 5,000 won, were hard to be found to have been found in its net assets statement No. 166.

5) Sub-committee

Ultimately, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in its entirety on the grounds that it is without merit.

shall be determined as above.