A deemed donation for title trust shall, where an agreement is made with the nominal owner, be applied unilaterally and may not be applied when the nominal name is used.

The fiction of title trust donation may not be applied in cases where it is unilaterally registered in the name of the nominal owner, regardless of the intent of the nominal owner, and the verification that it was made by the unilateral act of the real owner shall be the nominal owner who claims it.

Article 41-2 of the former Inheritance Tax and Gift Tax Act

1. The plaintiff's claim is dismissed.

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

The imposition of gift tax of KRW 98,036,960 on November 14, 2006 imposed by the Defendant to the Plaintiff on the Plaintiff on November 14, 2006 shall be revoked.

1. Details of the disposition;

A. On February 3, 2001, 201, the ○○ Total Steel Shares (hereinafter “○○ Steel Shares”) was established mainly for the purpose of wholesale and retail business such as steel bars with capital of 300 million won (10,000 per share value). A major shareholder of ○○ Steel Co., Ltd. (18,000 shares (60% of the total shares at the time of establishment of ○○ Steel Co., Ltd. was accepted at the time of establishment, and 3,000 shares were accepted at each of 6,000 shares), which is 30,00 shares of new shares at the time of offering of new shares on September 26, 2002, which is the representative director. The Plaintiff acquired 6,00 shares among them under the Plaintiff’s name at the time of September 26, 2002 (hereinafter “instant shares”).

B. The director of the Seoul Regional Tax Office, upon conducting a tax investigation on the ○○ Steel and the Masan Park, confirmed the fact that the shares of this case were trusted in title, and notified the Defendant of the assessment data of gift tax. On November 20, 2006 based on the above taxation data, the Defendant imposed KRW 98,036,960 on the Plaintiff pursuant to the provision on the constructive gift of trust property under the name of trust property under Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 67890, Dec. 18, 2002; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”). (hereinafter referred to as the “Disposition of this case”).

C. The Plaintiff appealed and filed an appeal with the National Tax Tribunal on February 8, 2007, but was dismissed on September 27, 2007, and filed the instant lawsuit on December 28, 2007.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 3, 4, 5 evidence, Eul 1, 2, and 3, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) Since the instant shares are acquired by abusing the name at will without agreement with the Plaintiff, there is no title trust relationship.

2) The use of ○○ Steel’s name at the time of establishment of ○ Steel was intended to take the number of promoters required by the Commercial Act for the establishment of the company. Since ○○○ continues to maintain the status of oligopolistic shareholders from the time of establishment of the company, i.e., maintaining the status of oligopolistic shareholders, the Plaintiff is subject to secondary tax liability regardless of whether the title trust was registered in the company. Therefore, it cannot be deemed that ○○○

B. Relevant statutes

Article 41-2 of the former Inheritance Tax and Gift Tax Act

C. Determination

1) The provision on deemed donation under Article 41-2(1) of the former Inheritance Tax and Gift Tax Act applies in cases where the actual owner and the nominal owner register in the name of the nominal owner under an agreement or communication with respect to the property which requires the transfer or exercise of the right, etc., and such registration is unilaterally made in the name of the nominal owner, regardless of the intent of the nominal owner (see, e.g., Supreme Court Decisions 84Nu748, Mar. 26, 1985; 95Nu13531, May 31, 196). In such cases, if the tax authority proves that the actual owner is different from the nominal owner, it shall be proved that the unilateral act of the actual owner was conducted in the name of the nominal owner regardless of the intent of the nominal owner (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 20

In light of the following circumstances acknowledged by the statements in Gap evidence Nos. 4 and Eul evidence Nos. 6, i.e., the plaintiff worked for the above company from the time of the establishment of ○○ Steel to September 30, 2004, and the fact that he held the title trust of the shares of this case to ○○○ who is a kind of friendly son, etc., the evidence submitted by the plaintiff alone is insufficient to recognize that the name of ○○ is stolen in the course of accepting the shares of this case by acquiring the shares of this case to the plaintiff, and there is no other evidence to acknowledge this otherwise. Therefore, the plaintiff's above assertion is without merit.

2) 구 상속세및증여세법의 증여의제 규정의 입법 취지는 명의신탁제도를 이용한 조세회피 행위를 효과적으로 방지하여 조세정의를 실현한다는 취지에서 실질과세원칙에 대한 예외를 인정한데 있으므로 명의신탁의 목적에 조세회피의 목적이 포함되어 있지 않은 경우에만 같은 조항 단서의 적용이 가능하고, 이 경우 조세회피의 목적이 없었다는 점에 관한 입증책임은 이룰 주장하는 명의자에게 있다. 따라서 조세회피의 목적이 없었다는 점을 조세회피의 목적이 아닌 다른 목적이 있었음을 증명하는 등의 방법으로 입증할 수 있으나, 입증책임을 부담하는 명의자로서는 명의신탁에 있어 조세회피 목적이 없었다고 인정될 정도로 조세회피ㅘ 상관없는 뚜렷한 목적이 있었고, 명의신탁 당시에나 장래에 있어 회피될 조세가 없었다는 점을 객관적이고 납득할 만한 증거자료에 의하여 통산인이라면 의심을 가지지 않을 정도로 입증하여야 한다(대법원 2006.9.22. 선고 200두1122 판결 참조)

We examine whether the title trust of the instant shares was derived from the purpose other than the tax avoidance purpose. In light of the fact that under the current income tax system, ○ Steel already satisfied the number of promoters (two persons) required to establish a company under the Commercial Act as of the date of title trust, the evidence submitted by the Plaintiff alone is sufficient to recognize that the title trust of the instant shares was aimed at meeting the requirements of promoters in relation to the establishment of the said company, and that there was a tax avoidance purpose, such as reducing the burden of early income tax, etc. due to the said title trust, in addition, there is no evidence to acknowledge otherwise.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.