The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim and appeal

1. Purport of the claim.

1. The reasoning of the judgment of the court of first instance cited by the court of first instance is identical to the ground of the judgment of the court of first instance, except for the case where the defendant added or emphasized the assertion that the defendant added or emphasized to the court of first instance, and thus, it shall be cited by Article 8(2) of the Administrative Litigation Act

2. Additional determination

A. Since the provision on deemed donation of title trust applies to the acquisition of the shares already held in title trust by the Defendant’s assertion, the tax authority should prove only that the actual owner and the nominal owner are different, the absence of the agreement on title trust should be attested by the nominal owner who asserts the agreement.

However, even if it is not so, the fact that there was an implied agreement between D and the Plaintiff to title trust the shares of this case is objectively proven.

B. Determination 1) Under Article 45-2(1) of the former Inheritance and Gift Tax Act, deeming the title trust as a donation pursuant to the part excluding the second general title portion is to accord with the substance and name of the property possession, and impose gift tax without the substance of the donation in order to achieve policy goals, such as preventing tax avoidance, etc. As such, inasmuch as a gift tax is imposed regardless of the existence of an act or fact, which is the essential basis for imposing tax, the imposition of tax, and such interpretation ought to be strictly avoided when interpreting the relevant statutes (see Supreme Court Decision 2014Du43653, Jan. 12, 2017). In addition, in order to recognize the donation of title trust, an agreement on the title trust between the actual owner and the nominal owner should exist, and this need to be taxed.

Since the tax authority has the burden of proof, and if the title trustee dies, there was a new title trust agreement between the title truster and the heir of the title trustee beyond being succeeded to the status of the title trustee.