Supreme Court Decision 2009Du5404 (No. 24, 2009)

Seoul High Court 2008Nu26482 (No. 18, 2009)

Appropriateness of the assertion that the taxation of stock title trust is a beneficial shareholder

In view of the fact that the wife or lineal ascendant or descendant of the deceased, who deemed the actual owner of shares, was not registered as the shareholder or officer of the company, and the Plaintiff owned the trademark right of the corporation that transferred shares to the Plaintiff without taking any measure immediately before the death of the deceased, the Plaintiff is determined as the actual

The contents of the decision shall be the same as attached.

1. Revocation of a judgment of the first instance;

2. The Defendant imposed a gift tax of KRW 91,583,960 on Plaintiff Jeong-A on September 1, 2006 and the imposition disposition of KRW 710,880,200 against Plaintiff Jeong-A shall be revoked in entirety.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. During the period from March 19, 2004 to May 18, 2004, this B transferred 20,000 shares (hereinafter referred to as “instant common shares transfer”) of Mai-W Co., Ltd. (hereinafter referred to as “Mai-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-Sa-S-Sa-Sa-Sa-S

B. On October 13, 2004, the Plaintiff Jeong-CC reported to the Defendant the inheritance tax including the total sum of KRW 200 million of the transfer price of the instant shares to the Defendant on March 2005, as the husband, died on October 13, 2004.

C. On June 2006, the Defendant conducted an investigation of the above inheritance tax, and determined that the shares of this case were trusted by pretending to be transferred on the deceased’s ground. The Defendant notified the Plaintiff Jeong-CC of the research result that the value of the shares appraised according to the supplementary method of assessment (2,158,60,000 won) and the total amount of the transfer price (2,158,660,000 won) shall be added to the taxable value of the inheritance tax by adding the difference between the value of the shares (2,158,60,000 won) assessed according to the supplementary method of assessment by applying Article 63(1)1(c) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “Act”).

D. On July 21, 2006, the plaintiffs filed a request for pre-assessment review against the defendant on the ground that "the shares of this case are acquired by lending the name of the deceased, who is a type of sale at the time of the incorporation of the non-party company, and thus, the plaintiff Jung-A is the actual owner, and therefore does not constitute the inherited property of the plaintiff Jung-CC," but the defendant decided not to accept the above assertion on August 30, 2006.

E. On September 1, 2006, the Defendant: (a) deemed that the owner of the instant shares was the deceased, not the Plaintiff, who was the deceased; and (b) deemed that the title trust was made with respect to the instant shares by pretending to transfer the deceased’s reason; (c) assessed the value of the instant shares in accordance with the supplementary assessment method, and assessed the value of the instant shares in accordance with the supplementary assessment method, and imposed KRW 762,463,070 on the Plaintiff Jeong-CC, respectively.

F. The plaintiffs appealed and tried to the National Tax Tribunal on December 5, 2006. On October 22, 2007, the National Tax Tribunal made a decision to the effect that the date of deemed donation of the shares of this case is May 30, 2004, and that the non-party company constitutes a corporation possessing excessive real estate as of the date of deemed donation, and that the value of the shares of this case is re-assessment, and the remaining request for a trial is dismissed.

G. On January 21, 2008, the Defendant re-assessments the value of the shares of this case according to the above decision of the National Tax Tribunal, and corrected the disposition of KRW 91,583,960 as to the Plaintiff Jung-A, and KRW 710,880,20 as to the Plaintiff Jung-CC (hereinafter referred to as “each disposition of this case, including each disposition described in the claim of this case, which was finally made after the above correction).

Facts without dispute over the basis of recognition Gap evidence 1, Gap evidence 2, Eul evidence 3-1, 2, Eul evidence 1-5, Eul evidence 2-1, 2, 3, Eul evidence 3-1 through 4, Eul evidence 4-1, 2, Eul evidence 5, Eul evidence 6, Eul evidence 9-1, 2, and Eul evidence 19, respectively.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

At the time of the establishment of the “AA foreign language institute,” which is a telegraph of the non-party company, the Plaintiff Jeong-A was in a situation in which he was unable to operate the company in its name due to the reason that his entire property was seized due to the bankruptcy of the company GGR Co., Ltd. (hereinafter “GGR”), which was operated by him. Therefore, the instant shares were inevitably leased the name of the deceased, and the pertinent situation was continued at the time when the said institute was converted into the non-party company. As such, the instant shares were transferred to the non-party company. Accordingly, the instant shares transfer was made in the form of the Plaintiff Jeong-A, which was a title trust with the deceased, to take over the shares in the name of the deceased. Therefore, each of the instant dispositions based on the premise that the Plaintiff Jung-A received a title trust on the instant shares, was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On October 29, 1979, Plaintiff Jeong-A established GG language for the purpose of publishing books, etc., and operated it as its representative director. around 1983, the Seoul Regional Tax Office imposed a disposition of tax amounting to approximately KRW 3 billion ( approximately KRW 1.5 billion of corporate tax on GG language and KRW 1.5 billion of global income tax on Plaintiff Jeong-A-A-U-U-A-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.A-U-U.A-U-U-U-U-U

(2) Around 1983, the Plaintiff Jung-A filed an administrative suit against the disposition of imposition of the above corporate tax and the defense tax amounting to approximately KRW 1.5 billion against the GG fishers. The lawsuit continues to exist for more than 10 years, and the Supreme Court rendered a final and conclusive judgment that the disposition of imposition of approximately KRW 1.2 billion equivalent to approximately KRW 81 billion, which is about KRW 1.5 billion, around December 1993, is unlawful, and thus revoked the disposition of imposition of the tax amount equivalent to KRW 1.2 billion, which is about KRW 1.2 billion, and thereafter the seizure of the tax authority, which was conducted with respect to the Plaintiff Jung-A’s property, was entirely

(3) Meanwhile, on September 1, 1990, the deceased, who is a type of the plaintiff Jeong-A, was in charge of the representative of the "AA foreign language institute" established in the name of the plaintiff Jung-A on September 1, 1990. The above private teaching institute was converted into a corporation on July 23, 1992 and was established by the non-party company, and acquired 19,93 shares out of 20,000 shares of this case (the non-party company acquired 7 shares from other shareholders at the time when 6 months have elapsed since the incorporation of the non-party company) and the non-party company was in charge of the representative director of the non-party company from the time when the non-party company was incorporated to April 19, 199. According to the wage and salary materials reported by the non-party company, the benefits that the deceased received from the non-party company are KRW 684 million, 199, KRW 96, KRW 9600,000.

(4) While the deceased was registered as the representative director of the non-party company, he/she did not provide his/her personal property as security while he/she was registered as the non-party company's representative director, and he/she did not provide a joint and several guarantee or provide a property after the resignation

(5) 소외 회사의 법인등기부등본에 따르면 원고 정A은 1999. 4. 19.부터 2000. 1. 27.까지 감사로 재직하다가 2000. 10. 27.부터 현재까지는 대표이사로 재직하는 것으로, 원고 정A의 처인 박HH은 1992. 11. 30.부터 1994. 3. 30.까지, 1995. 3. 3.부터 1998. 3. 31.까지는 감사로 재직하다가 2002. 4. 19.부터 현재까지는 이사로 각각 재직하는 것으로, 원고 정A의 처남인 박KK는 1992. 7. 23.부터 2000. 10. 27.까지 이사로, 1999. 4. 19.부터 2000. 10. 27.까지 대표이사로, 2000. 10. 27.부터 2001. 12. 27.까지 감사로 각각 재직한 것으로, 원고 정A의 처남인 박MM는 1999. 3. 8.부터 현재까지, 원고 정A의 아들인 정QQ은 2006. 8. 1.부터 현재까지 각각 이사로, 원고 정A의 아들인 정NN는 2006. 8. 1.부터 현재까지 감사로 각각 재직하는 것으로 등재되어 있으나, 망인의 처인 원고 정CC나 다른 가족, 친인척들이 이사나 감사로 등재된 적은 없다.

(6) With respect to the service mark (application on August 31, 1991) 'A Foreign Language Research Institute' and 'A' (application on July 7, 1993) registered under the name of the Plaintiff Company, the Plaintiff Company established and held an exclusive license for the non-party Company without any consideration on July 16, 1993 and February 17, 1995, with respect to the non-party Company 303-1 to 542 square meters, VV-ri 303-1 to 542 square meters on December 13, 1994, the maximum debt amount of KRW 30,000,000 won on March 23, 1995, the maximum debt amount of KRW 130,000,000,000 won on October 1, 1996, the maximum debt amount of KRW 200,500,000,000,000 won on each of the maximum debt amount of KRW 9.5 billion.

(7) From 1996 to 1998, the Plaintiff’s letter of draft, etc., which was registered as the representative director of the non-party company, appears to have been signed by the Plaintiff as the final approval authority (the chief director). However, the representative director’s letter of approval did not seem to have the letter of approval of the deceased, and there was no trace of approval by the deceased.

(8) 망인은 소외 회사의 발행주식 전부인 이 사건 주식 2만 주의 명의자로 등재되어 있다가 폐암으로 사망하기 얼마 전인 2004. 3. 19.부터 2004. 5. 11.까지 사이에 처남인 원고 정A을 비롯하여 정QQ, 박HH, 박MM, 이JJ, 김TT에게 그 명의를 모두 이전하였는데, 정QQ은 원고 정A의 아들, 박HH은 그 처, 박MM는 그 처남, 이JJ, 김TT는 그 지인이다.

(9) During the investigation process of the above inheritance tax conducted by the Defendant, the transferee of the instant shares, including Plaintiff Jeong-A, deposited the transfer price in the deposit account under the deceased’s name at the time of the transfer of the instant shares, and was returned to him again, or the employees of the Nonparty Company deposited the transfer price in the deposit account under the deceased’s name with the funds of the Nonparty Company, and subsequently withdrawn again.

(10) Meanwhile, around June 2006, after the transfer of the instant shares, the Plaintiff Jeong-A filed a lawsuit seeking confirmation of ownership (Seoul Central District Court Decision 2006Gadan231562) against KimT, Lee J, and ParkM, the title holder of the instant shares, and received a favorable judgment on November 9, 2006, and the said judgment became final and conclusive around that time.

Facts without dispute over the recognition basis, Gap evidence 4 through 13, Eul evidence 16 through 20, Eul evidence 27-1 through 28, Gap evidence 28-1, 28-29, Gap evidence 30-1 through 11, Gap evidence 33, Gap evidence 34-1, 2, Eul evidence 35-1 through 4, Eul evidence 6, Eul evidence 7-1, 2, Eul evidence 8, Eul evidence 9 through 14-1, 2, Eul evidence 15, Eul evidence 18-6, Eul evidence 19-2, Eul evidence 19-2, Eul evidence 30-1 through 11, Eul evidence 34-1, 35-2, Eul evidence 35-1 through 34, Eul evidence 6, Eul evidence 9-2, testimony of the court of first instance, the purport of the whole pleadings, and the purport of the whole pleadings.

C. Determination

(1) First, we examine the legitimacy of the disposition imposing gift tax on Plaintiff Jeong-A among each of the instant dispositions.

Article 45-2 (1) of the Act (hereinafter referred to as “the deemed donation provision”) applies to cases where the actual owner and the nominal owner are different from the actual owner in cases of property (excluding land and buildings) requiring registration, etc. for the transfer or exercise of rights. In such a case, the tax authority bears the burden of proving that the nominal owner of the property is different from the actual owner. Therefore, in order to apply the deemed donation provision to the shares registered as the shareholder in the case, the Defendant, who is the tax authority, is the nominal owner of the shares, must prove that the Plaintiff Jeong, who is the actual owner of the

However, as seen earlier, it is difficult to recognize that the transfer of the instant shares was made through a title trust solely on the grounds that the transferee of the instant shares, including Plaintiff Jeong-A, appears to have not actually paid the price when acquiring the instant shares, and there is no other evidence to acknowledge otherwise.

오히려 앞에서 인정한 사실관계 및 기록을 통하여 알 수 있는 다음과 같은 사정, 즉, ① 원고 정A은 GG어연을 운영하다가 1984년 10월경 부도를 낸 이후 그 소유의 재산이 과세관청에 모두 압류되는 등의 사정으로 그 이름으로 사업체를 운영하기가 어렵게 되었다가 소외 회사가 설립된 이후인 1994년경에 이르러서야 그 상태가 해소된 점, ② 망인으로부터 이 사건 주식을 양도받은 사람들은 원고 정A을 비롯하여 원고 정A의 처, 아들 처남, 지인 등으로서 망인보다는 원고 정A과 깊은 관계가 있는 사람들인 점, ③ 망인은 피고의 평가법에 의하더라도 가치가 21억여 원에 이르는 소외 회사의 주식 전부를 양도하면서도 그 반대급부를 취득하거나 나중에 이를 원상회복할 수 있는 안전장치를 마련하지 아니한 점, ④ 소외 회사의 기안품의서 등 주요 내부문 건에 망인이 아닌 원고 정A이 최종결재권자로서 자필서명을 한 점, ⑤ 망인은 소외 회사의 대표이사로 등재되어 있는 동안에 회사 채무에 대하여 연대보증을 하였을 뿐 개인 재산을 담보로 제공하거나 대표이사를 사임한 이후에도 계속 연대보증을 한 적은 없는 반면에, 원고 정A은 그가 소외 회사의 임원으로 등재되어 있지 않을 때부터 그 소유의 재산을 담보로 제공하였을 뿐만 아니라 그 명의로 등록한 상표 및 서비스표를 아무런 대가 없이 사용하도록 한 점, ⑥ 망인의 처나 직계존속 중에 소외 회사의 이사, 감사 등의 임원으로 등재된 사람은 없는 반면에, 원고 정A의 처인 박HH, 아들인 정 QQ, 정NN, 처남인 박KK, 박MM 등은 계속하여 임원으로 등재된 점, ⑦ 망언에게 실질적으로 귀속된 급여는 대표이사 및 1인주주에 상응한 보수라고 보기에는 그 액수가 적고 달리 망인에게 대표이사 및 1인주주에 상응한 보수나 가지급금이 지급되었다고 볼 자료가 없는 점, ⑧ 망인이 원고 정A에게 자신이 실제 소유자임을 주장하였다거나 이 사건 분쟁이 발생한 후 망인의 상속인이 원고 정A을 포함하여 주식 명의인을 상대로 권리 주장을 하거나 명의개서를 구하는 소송을 제기하였다고 볼 자료가 없는 반면에, 원고 정A은 김TT 등을 상대로 이 사건 주식 중 각 그들 명의의 주식의 소유권확인을 구하는 소를 제기하여 승소확정판결을 받은 점, ⑨ 소외 회사 설립 당시 주금이 망인의 실질적인 계산으로 지급되었다고 볼 수 있는 뚜렷한 자료가 없는 점 등을 종합하여 보면, 이 사건 주식은 당초 원고 정A이 소외 회사를 설립하면서 망인에게 명의신탁 하였다가 망인의 사망을 앞두고 명의신탁을 해지하고 그 자신 등의 명의로 이전한 것으로 봄이 상당하다.

Therefore, the imposition of gift tax on the premise that the Plaintiff had received the instant shares from the Deceased cannot avoid revocation due to its illegality.

(2) Furthermore, since the inheritance tax imposition disposition against the Plaintiff Jeong-CC is also an actual owner of the shares of this case, and is based on the premise that the title trust was made to the Plaintiff Jeong-A, etc., such revocation may not be avoided due to its illegality.

3. Conclusion

Therefore, all of the plaintiffs' claims are justified, and the judgment of the court of first instance is unfair, and it is so decided as per Disposition after cancelling the judgment of the court of first instance and cancelling each of the dispositions of this case.