As long as the shares of this case were returned, it shall be deemed that there was no donation from the beginning.

As the Plaintiff’s shares were returned within three months from May 8, 2009, May 8, 2009, the date when the reason for title trust was proved, the instant disposition was unlawful.

Article 45-2 [Presumption of Donation of Title Trust Property] Other than Value-Added Tax Act

Changwon District Court 2013Guhap237, 2016.27

United StatesA

○ Head of tax office

2016.07.05

2016.27

1. The Defendant’s imposition of KRW 809,023,776 on the gift of May 8, 2009 against the Plaintiff on November 11, 201 is revoked.

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

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. The director of the regional tax office of ○○○○○○○-dong, ○○○-dong, ○○○-○○○○, a KOSDAQ-listed corporation (hereinafter referred to as “△△△△△△△△△”) conducted a tax investigation on capital increase with consideration around May 2009, confirmed that BB conspired with CCC and entered the Plaintiff, etc. as a shareholder of △△△△△△△△△△△△△△, and that on August 26, 201, the director of the regional tax office dismissed the Plaintiff’s objection to KRW 1,90,000 (the face value is KRW 500,000, and the issue is KRW 810,000) that was assigned under the name of the Plaintiff, but the director of the regional tax office of ○○○○○-dong, ○○○○-dong, ○○-dong, ○○-dong, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 5 to 7 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff leased his driver’s license and seal impression as it is necessary for the employment of the high-speed job-friendly DD, but did not allow the Plaintiff to use the Plaintiff’s name in the issue of capital increase by △△△, and thus, the instant disposition based on the premise of title trust is unlawful.

2) As the Plaintiff returned the shares held in trust within three months from the end of the month to which the date of title trust deemed as the donation belongs, the Plaintiff shall be deemed to have never existed from the beginning pursuant to Articles 31 and 68 of the former Inheritance Tax and Gift Tax Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion of identity theft

The provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act shall apply in cases where a real owner or a nominal owner makes registration, etc. in the name of the nominal owner by agreement or communication with respect to property, the transfer or exercise of the right requires registration, etc., and thus, such provision shall not apply in cases where the tax authority unilaterally makes registration, etc. in the name of the nominal owner, regardless of the intent of the nominal owner. In such cases, the tax authority can only prove that the actual owner is different from the nominal owner, and the verification that the registration, etc., of the nominal owner was made in the unilateral act of the real owner regardless of the intent of the nominal owner should be made by the nominal owner (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 2008). Meanwhile, the title trust relationship is not necessarily established by an express contract between the truster and the trustee, but may also be established by implied agreement (see, e.g., Supreme Court Decision

Considering the following circumstances, Gap evidence Nos. 8, 9, and Eul evidence Nos. 3 and 15 and the purport of the entire pleadings, the plaintiff can be seen as having given the following circumstances: (i) the plaintiff permitted the use of driver's license and seal imprint upon the request of DD; (ii) the Plaintiff's seal impression is affixed to the subscription note for new shares issued by △△△△; and (iii) in the case against which the plaintiff filed a complaint against D for fabrication of private documents and the crime of uttering (U.S. 201-No. 28928 at the Sungnam District Public Prosecutor's Office, Sung-nam District Public Prosecutor's Office) stated that D was necessary for the Plaintiff's certificate of seal imprint, etc. in relation to the allocation of new shares issued by 100 to a third party; and (iii) D was subject to the disposition of non-prosecution disposition without suspicion in the above case, it is reasonable to deem that the Plaintiff consented to the use of the name at least at the time of issuance of the driver'

Therefore, the plaintiff's above assertion on a different premise is without merit.

2) Determination on the assertion of refund of shares

Article 31(4) of the former Inheritance Tax and Gift Tax Act provides, “Where the donated property is returned by an agreement between the parties within the deadline for filing the assessment basis of the gift tax under Article 68 (3) of the same Act, it shall be deemed that no gift has been made from the beginning: Provided, That this shall not apply where the tax base and the amount of tax have been determined before the return,” and Article 45-2 of the former Inheritance Tax and Gift Tax Act does not provide for the exclusion from the application of the above provision, and where the donated property is returned by agreement between the parties within the deadline for filing the assessment basis of the gift tax, or where the donated property is returned by an agreement between the parties, the donee or the title trustee does not own the property any longer (see, e.g., Supreme Court Decision 2011Du8765, Sept. 29, 2011). Meanwhile, it is reasonable to deem that Article 31(4) of the former Inheritance Tax and Gift Tax Act only refers to the return of shares by agreement between the parties and the transfer method under Article 36(1) of the Commercial Act.

In light of the following circumstances that can be seen by comprehensively taking account of the overall purport of the pleadings in the respective statements in the evidence Nos. 2, 10 through 14, and evidence No. 15, the termination of title trust and the return of property at the time when the EE received the Plaintiff’s share certificates on May 21, 2009. As such, title trust was lawfully terminated within three months from May 8, 2009, when the Plaintiff’s share certificates were received. Therefore, insofar as the Plaintiff’s share certificates were returned, the instant disposition was unlawful since it was deemed that there was no donation from the beginning.

A) The power of attorney was drawn up to delegate all the powers pertaining to the receipt of share certificates in the Plaintiff’s name, and EE received the Plaintiff’s share certificates (1,900,000 share certificates) by using the said power of attorney on May 21, 2009.

B) In the case of revocation of disposition imposing gift tax (Seoul Administrative Court 2012Guhap32376) on another name-holder Park 00, etc. (Seoul Administrative Court 2012Guhap32376), DDR testified that "the person who delegated the right of representation was supplemented, and each proxy was delivered to the creditors of HH, such as FF and GG, before issuing new shares. In the corporate bonds market, 80-9 billion won was offered as security and received new shares equivalent to the money paid out from the FF to III. GG testified testified testified that "the person who entrusted the shares recovered from JJ, the corporate bond company, entrusted the shares collected from JJ and appropriated cash for the interest on corporate bonds, etc." The Plaintiff testified that "the ○○○○○○○○○○○○○○○○○○○○○○○○, etc. of the Seoul Administrative District ○○ Office 2009, May 8, 2009."

C) On May 8, 2009, FF prepared a written confirmation that “IF shall receive and keep the right to receive and voluntarily process investors’ stock certificates and nine and other nine and the right to manage △△ management rights and the right to manage stocks as a collateral for the transfer price of stocks.” In the case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) at the time of interrogation, FF stated that “HH and GG deliver 15,185,062 shares and new shares of management rights to H and GG upon receipt of the transfer price for the right to manage and the right to manage.”

D) At the time of the examination of the instant case, GG stated that “at the time of the examination of the instant case, HH borrowed KRW 25 billion from the LL introduced by it, and paid 2 million shares for consideration as interest for three months.”

E) In light of the above circumstances, the Plaintiff’s share certificates appear to have been offered as collateral for FFF, etc. without going through the Plaintiff on the date of delivery ( May 21, 2009).

F) It can be deemed that the Plaintiff also granted the right to cancel the title trust by granting a blank power of attorney to DD.

3. Conclusion

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