National High Court 1996west2048 ( October 23, 1996)

Dismissal

In accordance with Article 32-2 of the Inheritance Tax Act, in case where the de facto owner or the nominal owner is different with respect to any property which requires the transfer of rights or the registration, recording, change of title transfer, etc., the initial disposition imposed on the actual owner on the date when the registration, etc. is made to his nominal owner shall be deemed to be a donation to his nominal owner. As such, in the detailed statement of stock transfer in the year of 92 business by the applicant, the initial disposition

The deemed donation of property registered in the name of a third party under Article 32-2 of the Inheritance Tax and Gift Tax Act / Where the property is not deemed the donation agenda under Article 40-6 of the Inheritance Tax and Gift Tax Act

I dismiss the appeal.

1. Summary of the original disposition;

The Gangnam-gu Seoul Metropolitan Government OOO integrated construction corporation (hereinafter referred to as the "OO integrated construction corporation") reported the tax base and amount of corporate tax for the 92 business year and submitted a detailed statement of stock transfer status by stating that the claimant, the representative director of the OO corporation, at the time, has acquired 135,000 stocks owned by OOO outside the claim on June 16, 92.

On February 16, 96, applying Article 32-2 of the Inheritance and Gift Tax Act to the claimant on February 16, 96, the disposition agency decided and notified the amount of KRW 373,609,50 of gift tax for 92 year to the claimant by deeming that the OO, a major shareholder of the non-claim corporation, acquired the claim set-off of the claim against OOO.

The claimant is dissatisfied with this and filed an appeal on June 17, 96.3.25.

2. Opinion of the petitioner and the Commissioner of the National Tax Service;

A. The claimant's assertion

The OOO, the actual owner of the stock at issue, unilaterally stated that the applicant, who is the representative director of the 92 business year representative of the OO in the statement of stock transfer status of the 16th June 16th of the 192 project corporation without prior consultation, the applicant acquired the 92.6.16th of the OO. This constitutes a case where the name of the claimant was stolen, and thus, the initial disposition that was imposed on the O

(b) Opinions of the Commissioner of the National Tax Service;

With respect to property which requires the transfer of rights or the registration, registration, change of title, etc. in accordance with Article 32-2 of the Inheritance Tax Act, in cases where the actual owner and the nominal owner are different, the actual owner shall be deemed to have donated to the nominal owner on the day when the registration, etc. is made to the nominal owner. Therefore, in the detailed statement of stock transfer in the year of 92 business by the applicant, the initial disposition taxable by deeming the fact that the applicant acquired the stocks in question owned by

3. Hearing and determination

A. The dispute over this case is whether the disposition imposed on the claimant by deeming the stock transfer as deemed donation under Article 32-2 of the Inheritance Tax Act as the fact that the claimant acquired the stock at issue in the specification of stock transfer while reporting the tax base and tax amount of corporate tax for the business year 92 business year.

(b) Related statutes;

Article 32-2 (Presumption of Donation of Property Registered in Name of Third Party) (1) of the Inheritance Tax Act provides that "where the actual owner and the nominal owner are different with respect to the property that requires a transfer, registration, transfer of title, etc. (hereinafter referred to as "registration, etc.") in such transfer or exercise of the right, the actual owner shall be deemed to have donated such property to the nominal owner on the date on which the registration, etc. is made, notwithstanding Article 14 of the Framework Act on National Taxes: Provided, That the same shall not apply in cases where a title trust under Article 7 (2) of the Act on Special Measures for the Registration of Real Estate is made in the course of the transfer of ownership by lending a third party's name without a tax avoidanceO, and where the former part of Article 40-6 of the Enforcement Decree of the same Act provides that "where the property falling under any of the following subparagraphs is deemed to have been donated to the nominal owner, the latter shall not be deemed to have been donated to the latter, and the latter part of subparagraph 2 (b) of the same Article 320 of the Enforcement Decree shall be deemed to have the burden of proof.

C. Facts and determination

(1) We examine whether the name of the claimant was stolen or not.

On November 27, 95, the disposition agency confirmed that the non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claimed non-claim's claim-off condition, and the non-claimed non-claimed non-claim's non-claimed non-claim's non-claimed non-claim's non-claim.

In full view of the above facts and the relevant Acts and subordinate statutes, it is difficult to see that, in the case of the title trust, the title trust is stolen by the claimant's name in the title trust of the non-claim corporation's major shareholder, the non-claimer's request for correction of the register of shareholders was made only after receiving a notice of investigation prior to the determination of gift tax due to the investigation of the transfer of stocks to the non-claimer corporation in Seoul Regional Tax Office after the lapse of three years since the claimant resigned from the representative director of the non-claimer Corporation, and the fact that the non-claimer's name was stolen in the title trust of the claimant's name in the case of the title trust of the non-claimer's shares, and the fact that the claimant acquired in the specification of the transfer of stocks in the business year of the non-claimer corporation 92.

(2) Examining whether there is a tax avoidanceO in title trust for the claimant who is the actual owner of the issued stocks, the fact that the non-claimer received KRW 97,380,000 from the earned income amount of (161,162,000, real estate income amount of KRW 160,000, and dividend income amount of KRW 103,205,00 from the foreign-claimer Investment Finance (State) during the 91 year that the non-claimer received respectively from the non-claimer's capital income amount of KRW 103,205,00, and the fact that the net income for the 91 business year for the non-claimer was confirmed by the documents related to the non-claimer. Thus, since the non-claimer's 195,000,000 shares of KRW 20 is anticipated to be subject to global income tax due to the global income tax due to the dividend income pursuant to the issue, it is determined that the claimant held the title trust shares.

D. Accordingly, the appeal is without merit, and it is so decided as per Disposition in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.