The specification of the actual owner equivalent to the donor constitutes a taxable requirement which serves as the premise of the provision on deemed donation of title trust, and the burden of proof is borne by the tax authority.

As long as △△△’s capital increase by issuing new shares of the deceased is not proved at all, the title truster of the instant shares is difficult to recognize the deceased, and therefore, the instant disposition is unlawful since the actual owner is not specified.

Seoul Administrative Court 2016Guhap50259

United StatesA and 20

00. Head of tax office and 13

June 22, 2016

August 19, 2016

1. The imposition of each gift tax stated in the final tax column among the attached Table submitted by the Defendants to the Plaintiffs on the date indicated in the disposal date as indicated in the attached Table shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On June 6, 2001, the Plaintiffs were allocated new shares of △△△△△△ (hereinafter “instant shares”) from the capital increase for new shares issued by △△△△ (hereinafter “△△△△”).

B. The director of the Seoul Regional Tax Office conducted a tax investigation on △△△△ Shipping, etc. from September 15, 2014 to October 5, 2014, and the networkB (hereinafter “the deceased”) acquired the right to new stocks under the name of the Plaintiffs, and notified the Defendants of the imposition of gift tax on the Plaintiffs. The Defendants issued a disposition imposing each gift tax on the Plaintiffs on the date indicated on the date indicated on each disposal date in the attached Table pursuant to Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter “the Inheritance Tax and Gift Tax Act”).

C. On January 29, 2015, the Plaintiffs filed an objection with the director of the Seoul Regional Tax Office, but subsequently received a subsequent decision of dismissal, and on May 21, 2015, upon filing a request for a trial with the Tax Tribunal, decided on October 8, 201 of the same year that the value per share of the instant shares shall be calculated from KRW 36,116 to KRW 15,719, and the tax base and tax amount shall be corrected. Accordingly, the Defendants issued a decision of correction that the amount entered in the column of the amount of the amount of the amount of the reduced tax in the attached Table to the Plaintiffs (hereinafter referred to as the “instant disposition”).

[Reasons for Recognition] No dispute, each entry of Gap evidence 1 to 4 (including paper numbers) and the whole pleadings

The purport of this case

2. Whether the disposition is lawful;

A. Summary of the parties' assertion

The Plaintiffs received the instant shares from △△△ Shipping, not the Deceased, in title trust, and at the time △△ Shipping did not have any possibility of imposing taxes on any pretext. Therefore, the instant disposition is alleged to be unlawful, while the Defendant asserts that the instant disposition was unlawful. On the other hand, the Plaintiffs, who received the instant shares from the Deceased and the Deceased avoided the secondary tax liability and the comprehensive income tax at the time of dividend due to the instant title trust. Accordingly, the instant disposition is lawful.

B. Key issue of the instant case

The main text of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act provides that “If the actual owner and the nominal owner are different from the property that requires the transfer or exercise of the right, the value of the property shall be deemed to have been donated to the actual owner on the day when the actual owner and the nominal owner are registered as the nominal owner, notwithstanding the provisions of Article 14 of the Framework Act on National Taxes.” The purport of the provision is that, in cases where the actual owner and the nominal owner are different from the actual owner, the nominal owner shall be deemed to have donated the property from the actual owner, which constitutes a taxation requirement which serves as the premise for applying the above provision, and the burden of proof is borne by the tax authority (see, e.g., Supreme Court Decision 9Du7920, Sept. 18, 2001). The proviso of Article 41-2(1)1 of the former Inheritance Tax and Gift Tax Act provides that, in light of the fact that the actual owner of the property acquired under another’s name without the purpose of tax avoidance, it is difficult to determine whether the actual owner are entitled to pay taxes.

C. Determination

According to Eul evidence No. 25, although KimCC stated that "the actual owner of the shares of this case, who worked as the representative director of △△△ Shipping from October 30, 2009, was the deceased," the above facts alone are insufficient to recognize the above facts.

Even if the deceased had a significant influence on the substantial control of △△△ Shipping as alleged by the defendant, as long as it is not proved at all that the deceased's reason for the capital increase in △△ Shipping was the reason for the payment of the deceased's capital at the time of issuing △△△ Shipping (or only the witness Does stated in this court that the capital increase in △△△△ Shipping was not made by borrowing from the bank, the customer, the president, and the employees at the time of borrowing from the bank, and there is no other evidence to prove otherwise.)

D. Sub-committee

Therefore, the instant disposition is deemed unlawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.