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(영문) 서울행정법원 2010. 08. 18. 선고 2009구합40308 판결
명의신탁 과세에서 무상증여로 과세원인을 변경할 수 있음[국승]
Case Number of the previous trial

Cho High Court Decision 2008Du2705 (Law No. 30, 2009)

Title

In the title trust taxation, the reason for taxation can be changed by free donation.

Summary

Inasmuch as a property trusted in the name of trust can be changed from the taxation of gift tax to the taxation of gift tax pursuant to free donation because it is permitted to change the grounds for disposition within the scope of the same subject matter of a lawsuit, claiming a different provision on the basis of taxation under the same tax basis

The decision

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

Text

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the plaintiff.

Purport of claim

The Defendant’s disposition of imposition of KRW 111,363,00, which was against the Plaintiff on December 10, 2007, is revoked (the date of the disposition written in the purport of the claim seems to be erroneous).

Reasons

1. Circumstances of the disposition;

A. On December 30, 202, A citizen A, who actually owns △△ Construction Environment Co., Ltd. (former: ○○○ Construction Co., Ltd.; hereinafter referred to as △△△ Construction Co., Ltd.), shall be deemed to transfer △△△ Construction Shares (the face value of KRW 5,000 per share; hereinafter referred to as “instant shares”) at KRW 5,00 per share to the Plaintiff, who is △△△ Construction Co., Ltd., and reported the confirmation of capital gains tax on May 31, 200. After investigating the capital gains tax on the instant shares, the head of ○○○ Tax Office determined it as gift agenda or gift pursuant to title trust, and notified the Defendant of the method of imposition of capital gains tax on KRW 30,00 per share (the appraised value of KRW 5,00 per share; hereinafter referred to as 20,000 per share) on the ground that there is no evidence of payment of capital gains tax on the instant shares.

[Reasons for Recognition] Facts without dispute, Gap evidence 15, 16, Eul evidence 1-1 to 3, Eul evidence 2-1 to 4, 3-1 to 6, and evidence 8, the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

(a)a summary of the cause of the claim of the Plaintiff;

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) Relation to deemed donation of title trust property

A) In order to impose gift tax by applying Article 41-2 of the Inheritance Tax and Gift Tax Act, the nominal owner and the nominal owner of shares are different. Here, the nominal owner refer to the person who has changed the title holder. However, there is no fact that the Plaintiff changed the title holder for the shares of this case.

B) Since △△ Construction was established on July 1990, 1990, the Plaintiff did not have any purpose of tax avoidance, such as global income tax, since it did not state the distribution until now.

2) Gratuitous donation relation

A) Since the Plaintiff or AA did not request △△ Construction to transfer the title to the instant shares, the Plaintiff cannot be deemed to have received the instant shares on the sole ground that the Plaintiff entered the details of stock change prepared and submitted at the time of regular corporate tax return by the non-party company as a shareholder.

B) The Plaintiff leased KRW 181,642,958, which was total from February 12, 1999 to January 20, 2001, to A residents, for the purpose of securing bonds, the Plaintiff was transferred the instant stocks for the purpose of securing bonds, and thus, the Plaintiff did not receive a donation for the said stocks from A residents without compensation.

3) Related to the assessment value of the shares in this case

A) Even if KimCC and BaB sold the shares of this case at KRW 5,000 per share on or around December 2002, it is unreasonable to ignore them and calculate the value of the shares by applying a supplementary evaluation method under the Inheritance Tax and Gift Tax Act.

B) Since the Plaintiff did not transfer the ownership of the instant shares, it is unreasonable to consider that the Plaintiff acquired the instant shares on January 1, 2003 pursuant to Article 41-2(1) of the former Inheritance Tax and Gift Tax Act, as amended by Act No. 6780, Dec. 18, 2002, and Article 9 of the Addenda, and to apply the share appraisal rate of 15%, while applying the share appraisal rate of 30% on December 30, 2002.

(b) Related statutes;

The entry in the relevant Acts and subordinate statutes shall be the same as attached Table 1.The legal fiction of title trust property is related to donation.

1) The plaintiff's Ba-A-A-B-A-B-W-W-W-W-W-W-W-S

Article 41-2(1) of the Inheritance Tax and Gift Tax Act provides, “In case where the actual owner and the nominal owner are different from the property that requires a registration, etc. for the transfer or exercise of the right, the value of the relevant property shall, in principle, be deemed to have been donated by the actual owner on the date on which the actual owner registers, etc. as the nominal owner in the register of shareholders.” Thus, the transfer of registered shares cannot be asserted against the company unless the name and address of the acquisitor are entered in the register of shareholders. Thus, insofar as the transfer of the right, which is the requirement for legal fiction of donation under Article 41-2(1) of the Inheritance Tax and Gift Tax Act, is not a case where the actual owner and the nominal owner are different in the property requiring a transfer of the right, which is a requirement for the legal fiction of donation under Article 41-2(1) of the Inheritance Tax and Gift Tax Act, and it cannot be deemed that the statement on the change of shares and equity shares, which are submitted along with a report on the tax base and tax amount of the corporate tax, even if a report on the change of shares have been made (see, etc.

Meanwhile, Article 45-2(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003) provides that, in cases where the list of shareholders, etc. has not been prepared, a transfer of ownership shall be determined based on the detailed statement of changes in stocks, etc. submitted to the chief of the district tax office having jurisdiction over the place of tax payment. However, the above provision applies to the portion of submission of the statement of changes in stocks, etc., stating that the change in the name of shareholders was made after January 1, 2004 (Article 10 of the Addenda). Thus, the above provision cannot be applied to the transfer of stocks, etc. as of December 28,

As to the instant case, there is no dispute between the parties concerned as to the fact that the transfer of title is not made in the name of the Plaintiff in the register of △△ Construction’s shareholders. Therefore, gift tax may not be imposed on the Plaintiff by applying Article 41-2 of the Inheritance Tax and Gift Tax Act to the Plaintiff.

2) Sub-determination

Therefore, without examining the existence of the purpose of tax avoidance, the plaintiff's above assertion is with merit.

(d)the free donation relationship;

1) Whether the case constitutes grounds for disposition of this case

The defendant stated in the preparatory document of January 14, 2010 that "the reason for the disposition in this case is only the legal fiction of title trust property under Article 41-2 of the Inheritance Tax and Gift Tax Act," but reversed the statement that "on the third day for pleading on June 30, 2010, free donation constitutes the reason for the disposition in this case." However, considering the circumstances of the disposition in this case as seen in the above 1., the statement in the preparatory document of January 14, 2010 is deemed to be erroneous, and in principle, the scope of binding force of confession is limited to the facts and legal issues such as the reason for the disposition, and in addition, since the subject matter of the lawsuit for the revocation of taxation exists in the objective existence of legitimate tax amount, the tax authorities may submit new data that can support the legitimacy of the tax base or tax amount recognized in the relevant disposition or exchange and change the reason within the scope of identical disposition, and it shall not be deemed that the tax amount can be determined differently within the same reason for the same disposition within the scope of 97.297.985.

2) The plaintiff's Ba-2)'s Ba-Ga's Ba-Ga's explanation

On the other hand, the taxation requirement of the gift under the Inheritance Tax and Gift Tax Act is satisfied by acquiring property by means of a gift contract, and thus, the taxation requirement of the gift of shares is satisfied by receiving share certificates, etc., and the transfer of ownership to the register of shareholders, which is merely a requisite for setting up against the company, is not satisfied (see, e.g., Supreme Court Decision 97Nu6506, Aug. 29, 197).

Therefore, insofar as it is acknowledged that A citizen donated the instant shares to the Plaintiff without compensation as seen below 3, the transfer of title to the △△ Construction List does not affect the legitimacy of the instant disposition. Therefore, the Plaintiff’s above assertion is without merit.

3) The plaintiff's Ba-2-B's explanation of the entry into the port

In full view of the following facts and circumstances, it is reasonable to view that the Plaintiff received free donation of the instant shares from AA residents who are his own three villages, in view of the following facts and circumstances, which can be acknowledged by comprehensively taking into account the respective descriptions of Nos. 1, 9-1, 9-1, 10, 15, and 2-1, 2, and 8 of the evidence No. 2 and the overall purport of the pleadings:

A) The Plaintiff did not present any objective evidence on the fact that from the Defendant’s tax investigation to the litigation in the instant case, the Plaintiff paid AA share transfer proceeds to A.

B) With respect to the source of money that the Plaintiff lent to A, there is no consistency, such as the Plaintiff’s assertion that, during the initial △△ Construction, it was “the honorariums received from the small merchants, the transporters, and the money collected individually from the borrower (No. 2-2).” In the instant lawsuit, the Plaintiff’s assertion that, “in the instant lawsuit, the Plaintiff converted the Plaintiff’s non-payment of the business, etc. to the loan to the ASEAN that it did not receive the payment of the business, etc

C) It is recognized that the Plaintiff was working for △△ Construction as a director or auditor from July 17, 1996 to the date, but there is no evidence as to whether the Plaintiff received the price for the Plaintiff in any way for the Plaintiff’s specific work in △△ Construction.

D) On December 28, 2002, the Plaintiff asserted that the Plaintiff entered into a substitute payment contract with respect to the instant shares (hereinafter referred to as “instant contract”) with A resident on the following terms and conditions. However, despite the lapse of at least eight years since the date when the Plaintiff and A resident entered into the instant contract, A resident did not fully pay the principal and interest on the Plaintiff’s assertion, and there was no agreement between the Plaintiff and A resident on the interest accrued continuously on the leased principal.

E) The demand note against AA citizen submitted by the Plaintiff (No. 7-1 of the evidence A) is prepared after the Defendant’s tax investigation on the Plaintiff, and it is difficult to believe it as is.

F) The regulations on the operation of collective free contract publicly announced by the Administrator of the Small and Medium Business Administration on November 30, 202 restrict the share of government-funded construction works by the same company. However, △△ Construction, △△ Industrial Co., Ltd. (hereinafter referred to as “△△△△△”), and △△ Industrial Co., Ltd. (hereinafter referred to as “△△△ Industry”), which are substantially owned and operated by AA residents, fall under the same company in accordance with the above regulations, and thus, AA citizen gains a benefit that would not be subject to the restriction on the share of government-funded construction even if he/she donates the instant shares to the Plaintiff without compensation.

4) Sub-determination

Therefore, there is no reason for the plaintiff's senior secretary.

(e)related to the assessment value of the shares;

1) The plaintiff's Ba-3)-Ga's Ba-Ga's explanation

In full view of the provisions of Article 60 of the Inheritance Tax and Gift Tax Act, and Article 49 of the Enforcement Decree of the same Act, the market price stipulated in the above Act refers to an objective exchange price formed through a general and normal transaction. Thus, even if there is a transactional example, it cannot be deemed as a price formed by a normal transaction that properly reflects the objective exchange value of donated property, and if the subject matter of donation is unlisted stocks, it shall be deemed difficult to calculate the market price, and the value thereof may be calculated according to the supplementary assessment method stipulated in Article 63(1)1 (c) of the Inheritance Tax and Gift Tax Act (see, e.g., Supreme Court Decision 2003Du5723, Oct. 15, 2004).

According to the health stand, Eul evidence No. 2, Eul evidence No. 1, 2, 6, and 7-1 through 3, and 8 of the evidence No. 7 as to this case, it can be acknowledged that the current status of the stock transaction of △△ Construction is the same as attached Form No. 2. In light of the above acknowledged facts and the above evidence, i.e., the following circumstances known, i., the purchaser of each of the above shares transaction, i.e., e., △△ Construction, △△ Construction, △△ Group, △△△ Group, or a person in a relationship with AA, who is an executive officer of the major shareholder, or a person in a relationship with A, a major shareholder, there is no evidence of the payment of the share transfer price. ② The trade price is equal to the date of the contract of this case. ③ The above transaction is considerably short of the net asset value per share (6,709 won) and the average profit value (9,950 won) of △△ Construction.

2) The plaintiff's Ba-3)-B's explanation of the entry into the port

On the other hand, whether there was a stock donation as a subject of gift tax under tax law should be determined by determining whether there was a stock donation based on the acquisition of shares and the actual status as a shareholder by acquiring the shares (Supreme Court Decision 2004Do817 Decided June 29, 2006).

In full view of the overall purport of the pleadings on this case, △△ Construction’s testimony by the public health team and witness BaB, the shareholder registry is not established, and the stock certificates are not issued until now, and no dividend has been made. In such factual basis, inasmuch as the Plaintiff could actually exercise its shareholder rights at the time when the agreement between the Plaintiff and AAB was reached with the intent to donate the stocks of this case, it shall be deemed that the Plaintiff was able to exercise its shareholder rights as at the time of the conclusion of the contract of this case, and it shall not be deemed that the donation was made as a gift subject to gift tax on December 28, 2002, and as alleged by the Plaintiff, it shall not be deemed that the donation was made on January 1, 2003. In addition, Article 9 of the former Inheritance Tax and Gift Tax Act amended by Act No. 6780, Dec. 18, 2002, which was amended by Act No. 6780, which was related to the donation of title trust property as in this case.

3) Sub-determination

Therefore, there is no reason for the plaintiff's accusation.

3. Conclusion

Therefore, since the disposition of this case is lawful, the plaintiff's claim seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.

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