Whether the requirements for title trust property under Article 45-2 (1) of the Inheritance Tax and Gift Tax Act are satisfied

The shareholders' list of the company of this case was not prepared, and the defendant's disposition which judged whether to change the ownership according to the detailed statement of stock changes is legitimate.

Article 45-2 of the former Inheritance Tax and Gift Tax Act

Article 352 (1) of the former Commercial Act

2016Guhap10935 Imposition Disposition of Gift Tax

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○ Head of tax office

March 9, 2017

March 30, 2017

1. All of the plaintiffs' claims are dismissed.

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

Division of KRW 106,072,480, which was paid by the Defendant to Plaintiff A on March 6, 2015 to Plaintiff Aa in the year of 2011

Section 205,253,600 won for the gift tax of April 1, 2015 on Plaintiff BB for the year 2012

Each disposition shall be revoked.

1. Details of the disposition;

(a) cc. d. (hereinafter referred to as "the corporation of this case") in which c. is the representative director:

The plaintiff Aaa (att prior to the opening of the name) as a corporation operating electrical construction business, etc.

The auditor of the above company is currently outside directors, and the plaintiff bb, who is a kys, re-appellant of the above company

It is in the position.

B.CC shall not exceed 12,600 shares out of the total 42,000 shares of the company of this case owned by it (hereinafter referred to as "the total shares of the company of this case").

“The shares of this case” was transferred to Plaintiff A on March 31, 201, to the effect that the shares were transferred to Plaintiff Aa on March 31, 2011:

the Defendant that the shares were transferred to Plaintiff BB on October 15, 2012.

Preliminary return of capital gains tax was made on the other hand, on the other hand, the business year of the instant company in 201, 2012

Detailed statement of the status of the fluctuation in the stocks in this case (Article 1, 2, hereinafter referred to as the "detailed statement of the status of the fluctuation in the stocks in this case").

CC transferred the shares of this case to Plaintiff Aa in 2011, and Plaintiff Aa 2012

In this year, it is again stated that it is transferred to Plaintiff BB.

C. The Defendant held the title trust of the instant shares to the Plaintiffs by cc, a real owner.

From the perspective of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015); hereinafter the same shall apply.

(E) On March 6, 2015, pursuant to Article 45-2, KRW 106,072,480, and KRW 106,072,480, to Plaintiff Aa, and KRW 205.

4. 1. Each of the Plaintiff bB imposed gift tax of KRW 205,253,600 on the Plaintiff bb (hereinafter collectively referred to as “instant case”).

'Disposition'.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1, 2 (including each number, hereinafter the same

C) Each entry and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

1) The instant company entered the register of shareholders in 2009, and cC, the owner of the instant shares, did not enter the Plaintiffs into the register of shareholders as the shareholders of the instant shares, thereby succeeding to the former inheritance.

Article 45-2(3) of the Tax and Gift Tax Act is not applicable, and the state of such company without the consent of the plaintiffs

Since the plaintiffs were stated as shareholders of the above shares in the statement of change in appearance, cc is required to do so.

The above shares cannot be viewed as a title trust to the High Court.

2) Even if cc has held a title trust of the shares of this case with the plaintiffs, cc Ghana

Only two shareholders of a corporation shall be required to have more than two shareholders of the corporation, and any shares owned by them shall be deemed legitimate.

It is too difficult to change the name of the shares of this case, which is a part of the plaintiffs, to the name of the shares.

Even after the trust, it still bears the secondary tax liability of oligopolistic stockholders under the Framework Act on National Taxes.

Considering that there was a purpose of tax avoidance, it cannot be deemed that there was a disposition against Plaintiff Bb.

part is nothing more than that the title trustee’s name was changed from Plaintiff Aa to Plaintiff B B.

(2) It cannot be deemed that an additional purpose of tax avoidance has occurred.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether to recognize title trust

A) Article 45-2(3) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 45-2(3)) shares

state that the owner seeks to avoid tax by entering his name differently from the actual owner

Where a change of entry is not made due to the absence of a master list or register of members, the former inheritance tax and

Article 45-2 (1) (main sentence) of the Inheritance Tax and Gift Tax Act shall be amended in such a case.

The legislative intent of this legislation is to impose gift tax, and the former Inheritance Tax and Gift Tax.

Article 45-2(3) of the Gift Tax Act has not been made up of the list of stockholders or the list of members.

In full view of the fact that the list of shareholders is clearly limited, where the list of shareholders is prepared, even if the name of the owner is different from the actual owner, the gift tax may not be imposed on the nominal owner by applying Article 45-2(3) of the former Inheritance Tax and Gift Tax Act, if the name of the nominal owner is not changed in the future (see Supreme Court Decision 2011Du1099, May 16, 201).

B) In the statement on the change of stocks, etc. of this case, the nominal owner of this case is the actual owner.

c. Statement of the Change of Stocks, etc. of this case in this case stated as the plaintiffs, not the plaintiffs

shareholders under Article 352 (1) of the former Commercial Act to the company of this case before the date of the transfer of the shares above

We examine whether the list has been prepared.

Nos. 5, 6, 7, and 9 are included in the whole arguments and arguments.

the following circumstances, i.e., the list of shareholders; and i.e., the list of shareholders; and

books prepared for such purposes, which do not have any special restrictions on the form thereof, but are not the former Commercial Act.

§ 352.1. Name and address of the shareholder, and the class of shares held by each shareholder;

Class and the number thereof, if share certificates have been issued for shares held by each shareholder, the number of such share certificates, and each share

The date of acquisition must include ‘the date of acquisition', and ② The Plaintiffs shall complete the pre-trial procedure after the disposition of this case.

In accordance with Article 396 of the Commercial Act even before the first date for pleading ( October 27, 2016) of this Court, the head office shall be

The plaintiffs' assertion without mentioning the existence of the original register of shareholders to be kept in the register of shareholders.

The plaintiffs' assertion is not an original copy of the shareholders' list (Evidence A No. 9, hereinafter referred to as "the shareholders' list of this case").

The company of this case submitted to a financial institution in 2009 only to obtain a loan.

of the register of shareholders, name cc, number of shares 42,00, par value 5,000, and

210,00,000 won. If the above list of shareholders refers to only the document with the name "I am able to prove that it is correct by comparing it with the list of shareholders kept at the head office," and it does not present the list of shareholders to the defendant at the request of the full bench at the first date for pleading of the court, and the plaintiffs' representative did not confirm the original list until now at the second date for pleading, it is hard to view that the list of shareholders of this case was prepared by the plaintiffs as the original list of shareholders of this case, and it is hard to view that the above list of shareholders of this case was prepared by the financial institution at 20,000,000 won and its par value was 5,000,000 won and 200,000,000 won as stated in the above list of shareholders as the result of 20,000,0000 won as stated in the Commercial Act, and it is difficult to view that the above list of shareholders was prepared by the company without any specific reasons for 20,0,0,0,0,00,00.

Therefore, the instant shares are stocks, etc. pursuant to Article 45-2(3) of the former Inheritance Tax and Gift Tax Act.

It is reasonable to see that the change of transfer should be determined in accordance with the change of change statement.

The plaintiffs' assertion on this premise is without merit.

C) Meanwhile, without the consent of the plaintiffs, the names of the shares of this case unilaterally by CC

The plaintiffs alleged that they transferred the significance to the plaintiffs' future, and thus, Dok-man, the old inheritance tax and gift tax.

The provisions on deemed donation under Article 45-2 (1) of the Act shall require registration, etc. in the transfer or exercise of rights.

the title holder by agreement or communication between the actual owner and the nominal owner in the United States;

(1) The name of the nominal owner unilaterally regardless of the intent of the nominal owner.

The tax authority shall not apply where registration, etc. has been made by using the corporation. In such cases, the tax authority shall

If it is proved only that the nominal owner is different from the nominal owner, and that the registration, etc. of the nominal owner is the nominal owner.

proof, regardless of whether it was a unilateral action of the owner of the real property, that it was action

The nominal owner shall be the nominal owner (see Supreme Court Decision 2007Du15780 decided Feb. 14, 2008), and cc

Without relation to the intent of the plaintiffs, the title of the shares was transferred to the plaintiffs.

Party A’s partial entry of Party A’s evidence 7 is consistent with the following circumstances:

cc has no other evidence to acknowledge it; and cc has agreed with the plaintiffs; and

It is reasonable to view that the instant shares were held in title trust by communicating.

Rather, in full view of the contents of evidence Nos. 1, 3, and 4 as follows:

Plaintiff Aa had served as an auditor of the instant company, i.e., the circumstances, i., ① outside directors.

The plaintiff bB is registered as an agent of the above company, and bB is in office as agent of the above company.

The minutes of the shareholders' general meeting of the company of this case are affixed with the seals of plaintiffs Aa, and 3

c even if cc is close to the plaintiffs and South or North Korean, the seal imprint certificate at will.

using the following procedures to change the name of shares that can be subject to the imposition of taxes on the plaintiffs:

In addition, it is difficult for the plaintiffs to obtain hot water, and thereafter, as to the identity theft of the plaintiffs ccc

It is recognized that there is no data that raised an objection.

Therefore, this part of the plaintiffs' assertion is without merit.

2) Whether to recognize the purpose of tax avoidance

A) The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act lies in the title trust system.

substantial taxation in the purport that tax justice is realized by effectively preventing such tax avoidance act;

As an exception to the principles, the purpose of the title trust includes the purpose of tax avoidance.

(1) The proviso to paragraph (1) of the same Article shall apply only if not, and in such cases, the title of the tax avoidance;

The burden of proof for the absence of such proof is against the person claiming it. Accordingly, the tax association has the burden of proof.

It proves that there was no objective of avoidance other than the purpose of tax avoidance.

However, the nominal owner who bears the burden of proof is in title trust.

It was obvious that there was no objective of tax avoidance and no relationship with that of tax avoidance;

objective and acceptable that there was no tax to be avoided at the time of title trust or in the future;

The evidence must be proved to the extent that the ordinary person is not suspected of being suspected (Supreme Court).

See Supreme Court Decision 2004Du11220 delivered on September 22, 2006

B) In light of the aforementioned legal principles, the instant case is clearly distinguishable from the tax avoidance to the Health Board, cc.

the title trust, and there was no tax to be avoided in the future at the time of the title trust.

Gap's evidence Nos. 7 and 8 are not sufficient to acknowledge it, and it is otherwise recognized.

There is no evidence that there is no evidence.

Rather, comprehensively taking account of the descriptions of Gap evidence Nos. 1, 3, and 4 and the purport of the whole pleadings as follows.

Since Article 288 of the Commercial Act does not impose any restrictions on the number of promoters necessary for the incorporation of a stock company since it was amended by Act No. 6488 on July 24, 2001, there is no special reason to distribute the shares to two or more persons, which is far later than that of the instant company established on February 23, 2005, and ② The un disposed earned surplus of the instant company is KRW 565 million in 2010, and KRW 93 billion in 201,932 billion in 201, KRW 932 million in 2012, KRW 124 billion in 200,000 in 200, KRW 1563 million in 2014, and KRW 3 million in 200,000 in 20,000 in 200 in 200, and there is no possibility to avoid taxation of global income tax, etc. on the dividend income in the future between the Plaintiff B and the title trustee.

Therefore, this part of the plaintiffs' assertion is without merit.

3. Conclusion

If so, the plaintiffs' claims are without merit, they are dismissed in entirety. It is so ordered as per Disposition.

shall be ruled.