Cho Jae-2014-1247 (Law No. 23, 2014)

It is not proven that the shares of this case were nominal and did not have the purpose of tax avoidance.

It is reasonable to deem that the instant shares were held in title trust at the time of issuing new shares by the company, and there is no evidence to prove that there was no purpose of tax evasion

Article 45-2 of the Inheritance Tax and Gift Tax Act as Donation of Title Trust Property

2014-Gu Partnership-57444 Revocation of Disposition of Imposing gift tax

AA

O Head of tax office

8.18

2, 2015.22

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The imposition of gift tax OOO on November 28, 2013 by the Defendant against the Plaintiff is revoked.

1. Details of the disposition;

A. On July 16, 2010, the Plaintiff acquired OO shares (hereinafter “instant shares”) issued by BB Co., Ltd. (hereinafter “instant company”) through capital increase.

B. After conducting an investigation on stock change with respect to the instant company, the Defendant: (a) deemed that the instant company’s shares at the time of the actual operator of the instant company, CCC, and CCC, the Plaintiff and FF under title trust with the OOO; and (b) on November 28, 2013, the Defendant imposed an OO on the Plaintiff, a title trustee, pursuant to the provision on the constructive gift of title trust property under Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 2011; hereinafter “former Inheritance Tax and Gift Tax Act”).

C. On January 6, 2014, the Plaintiff filed an appeal seeking revocation of the instant disposition with the Tax Tribunal, but the Tax Tribunal rendered a decision to dismiss the said claim on May 23, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 3 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the title trust of the instant shares under the name of the Plaintiff, there was no agreement with the CCC, the actual owner of the instant shares, and there was no agreement with the CCC, and the name of the Plaintiff was stolen by CCC.

In addition, the title trust on the shares of this case was made in the name of the plaintiff, there was no purpose of evading taxes, such as secondary tax liability.

B. Relevant statutes

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

C. Determination

1) Article 45-2(1) of the former Inheritance Tax and Gift Tax Act provides that "where the actual owner or the title holder of a property (excluding land and buildings) that requires a registration, etc. for the transfer or exercise of rights is different, the value of the property shall be deemed donated to the actual owner by the title holder on the date when the property is registered, etc. under the title holder (where the property is subject to a transfer of rights, referring to the date following the end of the year following the year in which the date of acquisition of ownership falls) notwithstanding Article 14 of the Framework Act on National Taxes: Provided, That this shall not apply to any of the following cases," and subparagraph 1 of the same Article provides that "where the property is registered, etc. under another person's name

2) We examine whether the Plaintiff received the title trust of the instant shares.

According to the above evidence, the plaintiff's certificate of personal seal impression and seal impression are entrusted to DD, a dynamics of CCC upon the request of CCC. The plaintiff is registered as director of the company of this case, and the business registration of GG operated directly by the company of this case is also registered in the name of the plaintiff, and the plaintiff did not have paid the price for the shares of this case in the preparatory document dated August 17, 2015 and did not exercise its rights as a shareholder. However, it can be acknowledged that the plaintiff asserted that "the shares were allocated in the name of the plaintiff upon the request of CCC and CCC, a substantial operator of BB."

Considering the absence of any evidence to deem the Plaintiff to have stolen the name as alleged by the Plaintiff, it is reasonable to deem that the Plaintiff received title trust from CCC at the time of capital increase by issuing new shares of the instant company.

2) Next, as to whether there was no purpose of tax evasion in the title trust of the instant shares

shall be deemed to have been.

The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to avoid tax avoidance using the title trust system

Examples to the substance over form principle in the purport that tax justice is realized by effectively preventing acts;

Since it is recognized that the purpose of title trust does not include the purpose of tax avoidance.

(1) The proviso of the same paragraph shall apply only in cases where there is no objective of tax avoidance in such cases.

The burden of proof on this point is against the person who asserts it (Supreme Court Decision 99Du30 delivered on July 23, 199).

Supreme Court Decisions 2003Du13649 Decided December 23, 2004, etc.

However, the fact that there was no purpose to avoid taxes in the title trust of the shares of this case.

There is no evidence to acknowledge it.

3) Therefore, we cannot accept all the Plaintiff’s assertion disputing the illegality of the instant disposition.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.