Gangnam branch branch court 201Guhap38 ( October 15, 2012)

early 2010 Heavy2466 ( October 11, 2010)

In title trust, it cannot be readily concluded that there was no intention of tax avoidance in title trust.

Inasmuch as the amount of tax on the dividend income that can be avoided through the title trust is not significant, or there is no reduced tax evasion or reduced tax on shares, it cannot be readily concluded that the Plaintiff did not have any intent of tax avoidance in the title trust under tax law in the title trust with respect to the title trust of the instant shares.

(Chuncheon)Revocation of revocation of the imposition of gift tax, 2012Nu527

LAA

Head of Three Tax Office

Chuncheon District Court Decision 2011Guhap38 Decided May 15, 2012

April 3, 2013

July 24, 2013

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first island shall be revoked. The imposition of KRW 00 in 2004, KRW 000 in 2006, and KRW 000 in 2007, and KRW 000 in 2008 on May 11, 2010 (the plaintiff stated on May 17, 2010 as the disposal date but appears to be a clerical error) made by the plaintiff shall be revoked.

1. Quotation of judgment of the first instance;

This Court's reasoning is as stated in the reasoning of the first instance court's decision, except for the part concerning "the judgment on the claim No. 2-B" among the grounds for the first instance judgment, and the part concerning "the judgment on the claim No. 2-B" among the grounds for the second instance judgment, as stated in the second instance court's decision No. 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

B. Determination as to the assertion of the above 2-B

(1) Relevant legal principles

The legislative intent of Article 45-2(1) of the Inheritance Tax and Gift Tax Act is to establish exceptions to the substance over form principle to the purport that the tax justice is realized by effectively preventing the act of tax avoidance using the title trust system. Thus, if the title trust was conducted for any reason other than the early tax avoidance purpose, and only the occurrence of minor tax reduction incidental to the said title trust, it cannot be readily concluded that such title trust had the purpose of tax avoidance. However, in light of the legislative intent as above, only if the purpose of the title trust is not included in the purpose of tax avoidance, it cannot be deemed that there was a deemed donation by applying the proviso of the above provision, and it cannot be deemed that there was no purpose of tax avoidance, and that there was no intention of tax avoidance, and in this case, the burden of proving that the purpose of the title trust was not the purpose of tax avoidance is to the person who asserts it (see, e.g., Supreme Court Decisions 2007Du1931, Apr. 9, 2009; 207Du1757, Sept. 17, 2017).

In addition, as the nominal owner who bears the above burden of proof, there was an obvious purpose irrelevant to the tax avoidance to the extent that there was no tax avoidance purpose in the title trust, and there was no tax avoidance at the time of the title trust or in the future, with objective and correct documentary evidence, to the extent that the ordinary person is not doubtful (see, e.g., Supreme Court Decisions 2004Du11220, Sept. 22, 2006; 2010Du23569, Feb. 24, 2011).

Furthermore, it is reasonable to view that the issue of whether there was a purpose of tax avoidance or not should be determined at the time of title trust as to whether the pertinent property was deemed donated under the title trust, and that it should not be determined as to which tax was actually evaded after the title trust (see, e.g., Supreme Court Decisions 2003Du4300, Jan. 27, 2005; 2004Du11220, Oct. 29, 2009; 2009Du11348, Oct. 29, 2009).

(2) Determination as to the assertion that the purpose was to avoid the provision of exclusion from the selection of supervisory duties by affiliated companies under the former Enforcement Decree of the Construction Technology Management Act (the assertion as to the first shares)

Article 51 (1) 1 of the former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 18039 of Jun. 30, 2003) provides that the plaintiff and the contractor's affiliated company shall be the plaintiff.

(i) Article 51 (Selection, etc. of Specialized Company A)

(1) Where a specialized construction-supervising firm selects a specialized construction-supervising firm to have it carry out field supervision, etc. pursuant to Articles 27 and 27-2 of the Act, the contracting authority shall not select a contracting-supervising firm as a specialized construction-supervising firm any of those awarded a contract for the construction work (where a joint contract was entered into by designing and executing construction work, referring to the joint recipients, respectively) and those awarded a contract, and where a specialized construction-supervising firm in the process of carrying out supervision becomes an affiliate of the contracting authority, it shall immediately replace

A specialized construction-supervising firm under supervision shall not be selected as a specialized construction-supervising firm, and where a specialized construction-supervising firm under supervision becomes an affiliated company of the contracting party, it shall associate with the specialized construction-supervising firm, and ParkS argues that the major shareholder of AA Comprehensive Construction Corporation (hereinafter referred to as the “AA”) holds a total of 21.80% shares in its own name, and that the company will hold at least 30% shares of the instant SDR, which is a specialized construction-supervising firm, has a relationship with its affiliated companies, and that the SDR could not be responsible for the supervision of the construction works implemented by AA Type, and that the Plaintiff was commissioned as such.

The following circumstances, i.e., the scope of Franchis affiliates, which are recognized by the respective descriptions of Gap 4, Gap 11 through 17 (including branch numbers in the case of household numbers), Eul 4, and Eul 11 (including branch numbers in the case of natural disaster) and the overall purport of the testimony and pleading of the witness Park S in the original judgment, are Article 2.2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004, hereinafter referred to as the "Fair Trade Act"). At the time of the title trust of this case, Park S owns 21.80% of the stocks of Gap 24.96% of the stocks of this case, and Article 2.36 of the Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 1836 of Mar. 8, 2005).

(ii) Article 2 (Definitions);

For the purpose of this Act, the definitions of terms shall be as follows:

2. The term “sibi business group” means the same person actually controls its business according to the standards prescribed by the Presidential Decree according to the following classification:

group of corporations;

A. A group of two or more companies where the same EL is a company, and where the two or more companies are not the company under the control of the same EL and its vice versa, the group of two or more companies where the unification is the one.

3. The term "affiliated company" means that where two or more companies belong to the same enterprise group, each company is called as an affiliated company of the others;

3) Article 3 (Scope of Enterprise Group)

For the purpose of subparagraph 2 of Article 2 of the Act, the term “company de facto controlling its contents according to the standards as prescribed by the Presidential Decree” means a company which accounts for any of the following:

I. A company in which the same person holds independently or in concert with a person (hereinafter referred to as the “person related to the same person”) falling under any item of a multi-Eup by not less than 30/100 of the total number of stocks issued by the company concerned (excluding non-voting stocks under Article 370 (Non-Voting Stocks) of the Commercial Act; hereafter the same shall apply in this Article, Articles 3-2 (Exclusion from Enterprise Group), 17-5 (Requirements for Exclusion from Prohibition from Guarantee of Debt Guarantee) and 18 (Reporting of Combination of Enterprises, etc.);

(a) Spouse, blood relatives within the eighth degree, and relatives within the fourth degree (hereinafter referred to as "relative").

Non-profit corporations or organizations (referring to unincorporated associations or foundations; hereinafter the same shall apply) in which the same person, alone or jointly with persons related to unification, has contributed at least 30/100 of the total amount of contributions as the largest contributor or one of the same person and persons related to unification, who are socially difficult for the same person or persons related to unification.

(c) A non-permanent light or organization over which the receiver exercises a dominant influence on the composition of salt sources, business management, etc., directly or through a person related to the same person;

(d) A company whose business activities are substantially controlled by the same person pursuant to this subparagraph or subparagraph (2).

(e) Employees of the same person and persons falling under the relationship under items (b) through (d) (in cases of a corporation, referring to executives, and commercial employees and employees under an employment contract in cases of an individual);

In addition to "the same person", at least 30% of the total A-type shares were owned by them. (2) At the time of the purchase of the title of this case, ParkS was 28.30% of the shares of the South-Nam, and his wife 17.22% of its b5.07% of its b5.07% of its b.8) since its 2.2(b) and 3th of Article 2 of the Fair Trade Act, the A-type housing and SDR status were owned by the company affiliated with the above company regardless of the title of this case, and since the 59th of May 6, 2004, the supervisor of the National Housing Construction Corporation, who was supplied with A-type 59 shares, could not be found to have been found to have been 10% of the shares of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 3rd.

(3) Determination as to the assertion that the purpose of avoiding the provision that a joint venture between affiliates under the Enforcement Decree of the Act on Contracts to Which the State Is a Party was to avoid participating in bidding by forming a joint venture between affiliate companies under the Enforcement Decree of the Act on Contracts to Which the State

Article 72 (4) of the former Enforcement Decree of the Act on Contracts to Which the State Is a Party (amended by Presidential Decree No. 20319, Oct. 10, 2007) prohibits bidding by forming an affiliate joint supply and demand organization. Article 44 (5) 9 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Strategy and Finance No. 578, Oct. 10, 2007) prohibits bidding if a violation is made (this provision also provides the same provision as Article 88 (4) of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party), and ParkS asserts that, as seen earlier, a affiliate relationship appears in the case of holding shares of 21.80% in its own name, while holding shares of 21.80%, and holding shares ofCC and GG construction in its own name, and therefore, the affiliate relationship cannot participate in the bidding by organizing a joint supply and demand organization with the Plaintiff, and therefore, the Plaintiff is asserting that the title 2 or 4 stocks of this case was consigned.

Part of the witness Park S in the original instance, and witness evidence 6, Gap, 7, 14, 19, and 14 through 15 (including paper numbers in case of household number), and witness evidence in Eul, and witness evidence in the second instance; and

(iv) Article 72 (Joint Contract)

j When the head of each central government agency or the public official in charge of contracts intends to conclude a contract by competition, they shall enter into a joint contract as far as possible, unless the joint contract is deemed inappropriate in light of the purpose and nature of the contract.

(3) In the case of a joint contract under paragraph (2), if the estimated price is less than five billion won (less than the announced price by December 31, 2009) and it is deemed necessary for the balanced development of construction leaves, etc., the head of each central government agency’s interest or the public official in charge of contracts shall consist of one or more joint contractors from among persons having the principal business offices in the Special Metropolitan City, Metropolitan City and Do having jurisdiction over the construction site: Provided, That this shall not apply in case where the number of persons qualified to perform the construction works in the relevant area is less than 10.

In the case of a joint supply and demand contract under paragraph (3), between the workers of the joint supply and demand organization concerned and other enterprises in the relevant region, they shall not be affiliated companies in accordance with the Monopoly Regulation and Fair Trade Act andj.

(v) Article 44 (Invalidity of Tender);

Tenders invalidated pursuant to Article 39 (4) of the Decree shall be as follows:

9. A tender that violates the joint contract method under Article 72 (3) or (4) of the Decree;

변론전체의 취지에 의해 인정되는 다음과 같은 사정 즉 @ CC이 건설업을 영위 한다는 점과 CC이 AA종건이나 RR건설과 공동수급체를 구성하여 건설공사 에 입찰하였음을 입증할 만한 증거가 없는 점(오히려 을제14호증의 기재에 의하면 CC벌의 주된 사업은 숙박업 및 휴양콘도운영업이다)， (2) RR건설의 경우 이 사건 명의선탁 당시(2007. 4. 17，) 박SS이 그의 처 최BB 명의로 20%의 지분과 그의 아들 박ZZ 명의로 10%의 지분에 해당하는 주식을 소유하고 있어 앞서 본 바와 같이 위의 명의신탁과는 관계없이 이미 AA종건과는 계열회사의 관계에 있었던 점(뿐만 아니라 원고는 박SS이 운영하는 CC의 직원으로서 앞서 본 공정거래법 시행령 제l호 마목에 의해 '동일인 관련자'에 해당하여， 박SS이 원고에게 명의신탁한 RR건설의 주식 20%까지 합하게 되면 박SS이 동일인 관련자와 합하여 RR건설 주식의 지분 50%를 소유하고 있는 것이 되어， 명의신탁과 관계없이 AA종건과 RR건설은 계열 회사의 관계라 할 것이다)， ® RR건설과 AA종건이 공동수급체를 구성하여 공사를 수주한 것은 그로부터 3년여가 경과한 2010. 2.경인 점，@ 원고는 박SS이 AA종건의 주식을 21.80%만 보유하고 나머지 주주는 그와 성씨가 틀려서 외관상 계열회사임 이 확인되지 않을 수 있다고 주장하나 주주명부(갑제13호증)상 최BB는 박SS과 주소가 통일하여 쉽게 그 관계를 확인할 수 있을 것으로 보이는 점 등과 위의 법리를 종합해 볼 때， 박SS이 원고에게 이 사건 제2 내지 4주식을 명의신탁한 것이 조세회피 와는 상관없는 국가를 당사자로 하는 계약에 관한 법률 시행령상 계열사 간 공동수급 체를 형성하여 입찰에 참여할 수 없다는 조항을 회피하기 위한 목적에 따른 것이라고 는 인정할 수 없으므로， 원고의 이 부분 주장도 이유 없다.

(4) Determination as to the assertion that there was no tax evaded actually

The Plaintiff asserts that, even if title trust was made with respect to the first and second shares, the secondary tax liability of oligopolistic shareholders and deemed acquisition tax are not sponsored, and the other taxes on the entire shares of this case are merely the simple possibility of tax avoidance or the reduction of a minor tax.

The issue of whether there was a tax avoidance purpose, and the issue should be determined at the time of the title trust. ① The evidence submitted by the Plaintiff alone is insufficient to readily conclude that ParkS would not be liable to pay global income tax on the dividend income from the possession of the instant stocks at the time of the purchase of the instant stocks in the name of the Plaintiff, and the fact that the instant stocks did not actually distribute dividends cannot be readily concluded that there was no tax avoidance purpose even at the time of the title trust on the instant stocks (see the above 2009Du11348, 200, 2006, CCF 2000 won earned surplus in 206, 2007, 2000 won, and 308, 2008, 2000, 2000, and 2008, 2000, 300, 300, 300, 300, 300, 300, 201, 30, 4, 3.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Then, the plaintiff's claim of this case is to be dismissed due to the lack of reason, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.