Seocho 2012,0624 (2013.09.09)

In the case of title trust of the right to transfer to shares, the provisions on deemed donation of title trust cannot be applied.

In the case of title trust of the right to transfer security for shares, gift tax cannot be levied by applying the provision on deemed donation of title trust under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act.

Donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2013Guhap28398 Revocation of Disposition of Imposition of Gift Tax

KimA

BB Director of the Tax Office

May 30, 2014

July 4, 2014

1. The Defendant’s imposition of gift tax of KRW 000 against the Plaintiff on October 12, 201 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On May 8, 2009, AA participated in the capital increase issued by BB (hereinafter “instant company”) on a company’s own name and changed the title of 000 shares of the instant company under its own name, and 000 shares of the instant company under its own name (hereinafter “instant shares”).

B. The Defendant determined that “AA was allocated shares by lending the Plaintiff’s name to CCC, etc.” on October 12, 201, the Defendant determined and notified the Plaintiff of KRW 000 of the gift tax pursuant to Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “former Inheritance Tax and Gift Tax Act”) (hereinafter “instant disposition”).

C. On December 29, 201, the Plaintiff asserted for a trial with the Tax Tribunal on December 29, 201, but the said Office

The Gu was dismissed on September 9, 2013.

[Reasons for Recognition] Unsatisfy, Gap evidence 3, 4, Eul evidence 1 and 12, all pleadings

Purport

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

AA is not owned on May 8, 2009 but allocated 000 shares of the company of this case for the purpose of transfer for security. Thus, even if AA trusted the right to transfer for security of the shares of this case to the Plaintiff, the gift tax may not be levied on the Plaintiff on this ground by applying the provision on deemed donation of trust under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act to the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) Around December 23, 2008, DD and EE entered into a contract with FF to acquire 000 shares of the instant company and management rights of the instant company from the FF, the representative director of the instant company, (i) (i.e., down payment of KRW 000 +00 + the remainder of KRW 000 + the remainder of KRW 000). As a broker of CCC and GG, DD and EE borrowed 000 shares of HH (hereinafter “H”) owned by the instant company from AA and paid 00 won down payment to FF as security.

2) AA lent money to CCC, etc. and recovered some of the money as listed below.

(unit: Won)

The balance of the collected amount of temporary loans

December 23, 20000

December 26, 20000

on 01. 01 07.0000

on 13,0000 on 13, 2000

On 1, 2001 28.0000

on 16.0000 on 12, 2009

on 17.00000 on 12, 2009

Total 0000000000

3) On March 13, 2009, AA made arrangements with CCC, GG, III, etc. The main contents are as follows:

1. CCC, GG, III, etc. shall borrow KRW 000 from AA on March 13, 2009, and provide KRW 000,000,000,000,000,000,000,000,000 from March 16, 2009, issued and distributed on March 30, 200, to the designated parties of AA or AAAA as collateral, and shall dispose of the shares offered as collateral prior to April 10, 200, and repay KRW 00,00,00,00 including interest expenses.

4. CCC, GG, III, etc. shall return H stocks held by AA as security to the instant company on March 27, 2009 with respect to KRW 000,000,000 which were borrowed from AA as security for approximately approximately KRW 00,000 stocks of the instant company on March 27, 209, and CCC, GG, III, etc. shall jointly and severally repay to AA on March 30, 209.

4) AA transferred to its own name 00 shares of the instant company, 000 shares of the instant company under the Plaintiff’s name (in addition, 00 shares of the instant company were changed to its ownership), July 20, 2009, 000 shares out of the shares under the Plaintiff’s name were sold to KRW 000 out of the shares under the Plaintiff’s name, and 000 shares out of the shares under the Plaintiff’s name on July 23, 2009.

(unit: State)

Temporary title holder, entry, exit and turf

on 06 08.AA000000

on 13.13.A00000

On 14.00000 on 14, 2009

on 16.16.A00000

On 17.00000 on 17. 2009

on 207.20. 20,0000

on 07.23.AA00000

Total 0000000000

5) On May 30, 201, III, upon receiving an investigation on May 30, 2011, stated to the following purport:

The text: The list of third party applicants shall be prepared in the public notice of the major situation report posted by the suspect on the website of the Financial Supervisory Service.

답 : AAA, 원고를 제외하고 저와 JJJ, KKK, LLL 4명이 작성한 명단인데, 이 중 제가 빌려온 계좌는 MMM, NNN, OOO 3명이고, 나머지도 제가 아는 사람들인데 PPP, QQQ, RRR, SSS 등이 그렇습니다.

: Whether all the documents are the borrowed name account or not.

The answer: N., I. However, the AA(the Plaintiff’s article) in the list is that the CCC first lends the down payment in the process of acquiring the company of this case, and the CCC has entered the name in order to offer the security for shares to that person. However, the shares paid up, however, are offered by TT in whole.

6) The CCC testified in this Court for the following purposes.

L : The plaintiff was a driver of AA at the time of acquiring the company in this case.

Answer: Examples.

The text: III borrowed the interest cost of KRW 1 billion from AA to take over the instant company on March 13, 2009 by the brokerage of GG and witness.

Answer: Examples.

The text: (a) provided as security an amount equivalent to KRW 0 billion of the shares of the instant company, which will be issued on March 30, 2009, and repaid KRW 00 billion including interest until April 10, 2009.

Answer: Examples.

The text: 000 weeks in the name of AA, 000 weeks in the name of the Plaintiff, and 000 weeks in the name of the third party was provided as a security for the loan of 0 billion won to AA.

The answer: the date when the name was entered is 5.7 and the date when shares were made out was 5.30.

The text: Stocks allocated in the name of AA or the plaintiff are offered as a security, and it is not required that the actual AA or the plaintiff has paid the capital increase in order to acquire the stocks.

The answer: It is not true that AA and the Plaintiff have paid the capital increase in order to acquire shares.

The text: The witness stated on June 14, 201 that he borrowed KRW 0 billion from the AA (use in the name of III) and allocated new shares equivalent to KRW 00 billion in the name of the plaintiff, in the name of the AA and the plaintiff. It is essential that the shares offered as security are not equivalent to KRW 00 billion, but equivalent to KRW 200 percent in the amount.

Answer: Examples.

The text : AA has believed a witness and lent the money continuing to be secured by shares to III.

The answer: there may be a little amount of money that has been given out and lent shares and that has been lent on credit.

sentence: New shares allocated by AA, etc. to the Company (00 shares in the name of the AA, 00 shares in the name of the Plaintiff)

any person shall be entitled to have the right to transfer.

The answer: It is against III.

On the other hand, since AA has provided a security under the name of AA, it is essential that AA can dispose of it whenever it has a security.

The reply: It may be disposed of when the collateral is accepted in excess of the due date. The remainder calculated by disposing of the collateral and subtracting the amount of KRW 00 million shall be returned to III.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 3, 6, Eul evidence 2, 8 through 12, the CCC

testimony, the whole purport of the pleading

D. Determination

The main sentence of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act shall register the transfer or exercise of the rights.

Article 14 of the Framework Act on National Taxes where the actual owner is different from the nominal owner.

Notwithstanding the provisions of this section, the actual nominal owner of the value of the property on the date when it is registered, etc. as the nominal owner.

The legislative intent of the above provision is to recognize an exception to the principle of substantial taxation in the purport that the act of tax avoidance by using the title trust system is effectively prevented, thereby realizing the tax justice (see, e.g., Supreme Court Decision 2003Du13649, Dec. 23, 2004). Therefore, the application of the above provision is to be strictly interpreted, and the meaning of the title trust is limited to the case where the actual owner is different from the nominal owner, so it is difficult to interpret it as the concept including "where the actual mortgagee and the nominal mortgagee are different." In full view of the above, in the case of a title trust, in which the right to transfer a security for shares is held, gift tax may not be imposed by applying the provision on the donated gift for the title trust under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act.

In addition to the above-mentioned evidence and the overall purport of the pleading as to the facts acknowledged.

The following circumstances, namely, ① DD and EE, from FF around December 23, 2008:

The contract was entered into with the FF to acquire the shares and management rights of the Company.

(2) AA has borrowed 0 billion won from AA to pay the proceeds, and <2 AA has borrowed 0 billion won from AA to

Even after lending money to CCC, etc. and collecting part of money, loans on February 17, 2009

The balance was KRW 0 billion, but AA shares of the instant company allocated on May 8, 2009 by the Company.

The issue price of KRW 000 exceeds KRW 0 billion, and ③ AA shall be March 13, 2009.

The purport that a company lends 0 billion won to CCC, etc. and receives shares of the company of this case as security.

In full view of the fact that AA made a written agreement, (4) on July 2009, sold 00 shares of the instant company to KRW 000, and (5) on May 30, 201, III made a statement to the effect that "CC allocated new shares to provide security to AA", and CCC made a statement to the effect that "AA and 000 shares of the instant company allocated in the name of the Plaintiff are offered as security" in this court, it is reasonable to deem that AA was not owned, but allocated 00 shares of the instant company for the purpose of transfer. Therefore, even if AA has entrusted the Plaintiff with the right to transfer a security for the instant shares, it cannot be imposed upon the Plaintiff on the ground that the Plaintiff may not be subject to the provision on the constructive gift of trust under Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act.

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition.

shall be ruled.