Suwon District Court 2013Guhap10121 ( December 04, 2013)

early 2012 Middle 3663 ( November 13, 2012)

It is reasonable to view that an unilaterally nominal name is stolen and registered in the register of shareholders.

The facts established as the reason for a criminal judgment on the same factual basis are significant evidence, and the facts against which it is difficult to employ the factual basis in the criminal trial compared to other evidence submitted in the civil trial cannot be acknowledged unless there are special circumstances to the contrary.

Donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2013Nu54030 Revocation of Disposition of Imposing gift tax

KimA

The director of the tax office

Suwon District Court Decision 2013Guhap10121 Decided December 04, 2013

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of gift tax on January 2, 2012 by OOO(including OOO(s)) against the Plaintiff shall be revoked.

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

Judgment like the Disposition

1. Details of the disposition;

The court's explanation on this part is the same as the statement on the corresponding part of the judgment of the court of first instance. Thus, this part of the judgment is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserted that the instant disposition, based on the premise that the title trust was established between the Plaintiff and AAA, was unlawful since the Plaintiff was entered temporarily as the Plaintiff’s shareholder in the shareholder registry of BB Construction even though the actual owner of the instant shares was AA, but this was merely the result of an arbitrary use of the Plaintiff’s share transfer certificate.

B. Relevant statutes

Article 45-2 of the Inheritance Tax and Gift Tax Act (Legal Fiction as Donation of Title Trust Property)

(1) Where the actual owner or the nominal owner of any property (excluding land and buildings; hereafter the same shall apply in this Article) required to be registered, etc. for the transfer or exercise of rights is different, the value of such property shall be deemed donated to the actual owner by the nominal owner on the date when it is registered, etc. to the nominal owner (where such property is subject to the change of ownership, referring to the date following the end of the year following the year in which the date of acquisition of ownership falls), notwithstanding Article 14 of the Framework Act on National Taxes:

1. Where any property is registered in another person's name without any purpose of tax evasion, or transfer is not made in the name of the actual owner who has acquired the ownership;

(2) Where property is registered, etc. under another person's name, or a change of ownership is not made under the name of the actual owner, or where the title of stocks, etc. is not converted under the name of the actual owner during the grace period, it shall be presumed that there exists a purpose of tax evasion: Provided, That this shall not apply where the transferor files a report on the change of ownership, along with a tax base return on capital gains under Articles 105 and 110 of the Income Tax

(1) BB Development Co., Ltd. (hereinafter “B development”) and BB Construction are the same as O2-53 at OO at O, the representative director of BB development is AA, and the representative director of BB construction is CCC, but AA actually operates both of the above two companies. However, the Plaintiff was a staff member of the accounting department of BB development from December 22, 2008 to September 4, 2010. (2) The Plaintiff issued a certificate of personal seal impression to AA as it requires that it be registered as the executive officer of B construction. However, the Plaintiff did not have any indication as the executive officer of B construction.

(3) around October 2010, AA instructed DDR, which is in charge of general management, etc. in BB development, to change BB construction shares in the Plaintiff’s name in the name of EE on the ground of the Plaintiff’s retirement from the office of the BB, and DDR, which became a transferor and transferee EE, prepared a contract for the transfer of shares on August 31, 2010, and submitted a report and a statement of tax base of transfer income as of October 29, 2010 under the name of the Plaintiff and the transferor, and submitted it to the OO tax office. (4) The OO tax investigation by the OO regional tax office on October 29, 2010

A) According to the literature (Evidence 3) prepared by AA on September 28, 201 in the process of undergoing an investigation as to whether or not to hold a title trust by a public official of the office of national tax offices of the Republic of Korea, AA stated that, at that time, all shares of BB development and BB were actually owned by him/her, EE, who is an employee of the company, and that he/she was in title trust with Hack interest, GG, HH, III, JJ, etc., who is an employee of the company, and further, according to the schedule of BB construction in 2009, 38,80 shares out of 77,760 shares in the name of the shareholder KK were acquired in the name of the Plaintiff, and issued them again in the name of 2010, the Plaintiff was merely aware of its employees, who were currently operating the company at that time, and that he/she did not have agreed to the Plaintiff’s shares in the name of 1, 2010 shares.

(5) On October 10, 201, the Plaintiff, GG, HH, III, JJ, LL, and seven other parties filed a complaint with the O police station on the charge that “AA arbitrarily forged documents concerning quantity and water supply using a seal kept in its custody without its consent,” and (6) the final and conclusive judgment against AA was rendered.

A) On November 15, 2011, December 17, 201, and January 11, 2012, AA led to an investigation of the forgery of the said private document by the O police station, and led to a confession of all suspicions that “in establishing BB construction, etc. at around 2003, AA requested the complainants who are neighboring persons to receive a certificate of personal seal impression and seal, etc., and forged a stock acquisition agreement without obtaining consent from the complainants as a shareholder of the said company.”

B) AA was prosecuted for committing an offense, including the fabrication of the above private document, and was convicted of the charge of forging private document, etc. on December 20, 2012 at the OO branch of the O local court, 2012, 27, 32, 35 (Joint), 41 (Joint), and 72 (Joint). AA or the prosecutor appealed on the ground of unfair sentencing. The appellate court's O High Court (OO) and 2013OOO decision, which was the appellate court, also recognized the above criminal facts as they were, and sentenced to a suspended sentence of 5 years and a fine of 1.90 million won. The appeal was dismissed on November 8, 2013 by the Supreme Court Decision 201DoOOOOO decision, and the above judgment was rejected, and the plaintiff did not have any specific reasons for the prosecution against the defendant's testimony during the criminal trial, nor was the appellate court's testimony for the first time to be revoked.

(1) Article 45-2(1) of the Inheritance Tax and Gift Tax Act applies in cases where the actual owner and the nominal owner enter into a registration in the future by agreement or communication with the nominal owner with respect to the property that requires the transfer or exercise of rights, and where the registration, etc. was unilaterally made under the nominal owner’s name regardless of the nominal owner’s intent, the tax authority can only prove that the actual owner and the nominal owner are different, and the burden of proving that the nominal owner was used by the unilateral act of the real owner should be the nominal owner (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 2008). However, in light of the aforementioned legal principles as seen earlier, the Plaintiff’s disposal of shares under title trust is not established by an express contract between the truster and the trustee, but by an implied agreement on the acquisition of the said shares (see, e.g., Supreme Court Decision 200Da49091, Jan. 5, 201).

B) If a tax authority has received a confirmation from a taxpayer that he/she is the person liable for tax evasion in the course of a tax investigation, the evidence of the confirmation cannot be readily denied. However, in this case where there is no evidence that conforms to the statement or there is no supplementary investigation such as confirmation of the fact about the taxpayer, etc., the confirmation document, etc. prepared by the person other than the taxpayer cannot be considered as taxation data for the taxpayer unless there are other special circumstances (see, e.g., Supreme Court Decisions 2001Du2560, Dec. 6, 2002; 2009Du5022, Jul. 9, 2009). AA stated that the Plaintiff registered the Plaintiff as the shareholder of the instant shares with the Plaintiff’s consent during the tax investigation process, but there is no fact that the Plaintiff has consented to the title trust of the instant shares in the process of the tax investigation, it is difficult to prevent the Plaintiff’s unilateral statement, other than the Plaintiff, from making any other special circumstances against the Plaintiff.

C) In particular, AA is merely a comprehensive reply to the fact that BB construction, BB ocean development, and the company employees came to a title trust with the consent of the company employees in the tax investigation. Therefore, it is difficult to reverse the fact-finding of the criminal judgment solely based on the statement of AA.

D) Unlike other shareholders, the Plaintiff did not have a relationship with AA, and was merely an accounting employee for two years in BB development. Therefore, it seems that there was no reason to allow title trust of the instant shares at risk of risking the imposition of gift tax.

E) Since the list of shareholders of BB construction has been kept in a separate book with a locking device inside the office, it is not easy for the Plaintiff, who is an employee of the accounting department, to confirm the list of shareholders of BB construction, and it is likely that he/she was unaware of the fact that he/she is a shareholder of BB construction.

F) The Plaintiff did not agree with the AA despite the repeated request made by the AA, unlike other shareholders, in the course of the AA’s criminal trial. In light of the process of the said criminal trial and each type of punishment sentenced to the AA, the Plaintiff appears to have no intention to agree with the AA and had a strong intention to punish the Plaintiff.

g)DD is present at the trial as a witness and subject to AAA’s instruction, the Plaintiff to FF.

When allowing the return of tax base of transfer income and the statement of payment (No. 4) in the name of the Plaintiff to be made, the Plaintiff was already retired, and AA was aware of the Plaintiff’s personal information according to the KNNN Stock Transfer Agreement, and the Plaintiff did not confirm the Plaintiff’s intention. 3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition.