Cho High-2016-west-601 (Law No. 11, 2017)

If domestic shares are trusted under the name of a foreign corporation, the legality of the disposition of title trust donation, and the secondary tax investigation based on the civil judgment is allowed.

It is legitimate to apply the legal fiction of title trust donation in accordance with the substance principle to trust domestic shares in the name of a profit-making corporation overseas, and the second tax investigation that is conducted with clear tax evasion by the civil judgment is permissible under the Framework Act on National Taxes.

Prohibition of abuse of the right of tax investigation under Article 84-4 of the Framework Act on National Taxes as deemed donation of title trust property

2017Guhap63610 Revocation of Disposition of Imposition of Gift Tax

○ ○

○ Head of tax office

November 30, 2017

November 2011

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

The Defendant’s imposition of each gift tax of KRW 10,154,03,170 (including additional taxes) and KRW 30,625,698,80 (including additional taxes) against the Plaintiff on October 1, 2015 shall be revoked.

1. Details of the disposition;

"CC CCC CCC Limed, hereinafter referred to as "CC") was established on February 1, 2002 in Hong Kong with the net ○○○○ (hereinafter referred to as "CCC") for its own asset management of USD 2 in Hong Kong, two shares issued ($ 1 in Hong Kong per share). The deceased is the beneficial owner of CCC (Befic Pate Pate Co., Ltd.). However, on March 10, 2006, the CCC issued shares [1,040,000,000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,000,000,000,00,000,00,000.

C. From December 15, 2014 to April 11, 2015, the Director of the Regional Tax Office of ○○○ (hereinafter referred to as the “Investigation Office”) conducted a gift tax investigation for 2007 on the deceased. As a result, the deceased deemed the title trust of the shares of this case to have been conducted on November 13, 2007, and notified the deceased of the tax investigation for 30,393,72,919 won to the Defendant on April 28, 2015 under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax and Gift Tax and Gift Tax and notified the deceased of the tax investigation for 30,393,772,919 won to be conducted on April 27, 2015, each of the instant case for 2005.

D. On May 15, 2015, the Plaintiff appealed and requested the Commissioner of the National Tax Service to review the legality of the taxation before taxation, but received a non-adopted decision on August 28, 2015.

E. Upon the deceased’s death on October 14, 2014, on October 1, 2015, the Defendant separately decided and notified the deceased’s spouse and heir KRW 10,154,003,170 (including additional taxes) related to the instant convertible bonds and KRW 30,625,698,80 (including additional taxes) related to the instant stocks (hereinafter “instant disposition”).

F. On December 29, 2015, the Plaintiff appealed to the Tax Tribunal, but was dismissed on July 11, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, 15, 16, Eul evidence 1 through 3 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

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

(i) Illegal duplicate tax investigations;

In around 2010, the Investigation Agency conducted a gift tax investigation on the deceased from 2006 to 2007 at the time of the integrated investigation of the DD system’s corporate tax. Since the above tax investigation and the instant tax investigation are identical to the person subject to investigation, the items subject to investigation, and the period of investigation, the instant tax investigation are duplicate tax investigation. However, the Investigation Agency did not retain “clear material to acknowledge suspicion of tax evasion” under Article 81-4(2)1 of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015; hereinafter “former Framework Act on National Taxes”) which is allowed at the time of the instant tax investigation, and thus, the instant tax investigation is illegal.

2) Non-existence of the title trust agreement and non-existence of tax avoidance purpose

The deceased and CCC did not have any agreement on title trust on the instant convertible bonds and shares, and even if there was a title trust agreement among them, the deceased did not have any purpose of tax avoidance regarding the said convertible bonds and shares, so the provision on deemed donation of title trust cannot be deemed as applicable.

(iii) investments permissible under domestic law;

Since a foreigner's acquisition of domestic corporation's stocks through a special purpose corporation is a method of acquiring legitimate stocks, which is recognized by the Financial Investment Services and Capital Markets Act, it is improper to impose sanctions by applying the provision on constructive gift for nominal trust.

4) An administrator of the deceased

Even if the Deceased is the actual owner of the instant convertible bonds and shares, CCC should be deemed an administrator of the Deceased, a non-resident, and thus, the provision on deemed donation of title trust cannot be applied.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Changes in the equity structure of the DD system following the exercise of the convertible right to convert the instant convertible bonds

As a result of the exercise of the convertible right to the convertible bonds of this case, the shares of the shareholders of the existing DDD system, other than CCC, were reduced from 43% (as of December 31, 2006, the 1,661,250 shares) to 28% in the case of KK International Litr (KK International Lt. hereinafter referred to as "K"), and from 3% in the case of the deceased (as of December 31, 2006, the 126,386 shares as of December 31, 206, the hereinafter referred to as "each shares of this case"), from 54% in the case of other shareholders, to 35% in the case of other shareholders.

2) The primary tax investigation of the instant case

From August 23, 2010 to September 29, 2010, the Investigation Agency conducted an integrated investigation into the DDD system into corporate tax for the business year 2007 of the DDD system with respect to the conversion of the instant convertible bonds, and notified the results of the investigation into gift tax on domestic source income, including a non-resident corporation, of the obligation to withhold gift tax, by deeming that the CCC received benefits from the issuance of the instant convertible bonds to the person with a special relationship, who was the largest shareholder of the DD system at the time of the issuance of the instant convertible bonds, and provided profits by allowing the CCC to exercise the right to convert at a lower price than the market price. The CCC imposed corporate tax on the deceased as domestic source income. From September 9, 2010 to September 28, 2010, the Investigation Agency notified the deceased of the results of the tax investigation on domestic source income, including "non-resident corporation, of the obligation to withhold tax."

3) The instant tax investigation

A) On December 2014, the investigating authority made a prior notice of tax investigation that “the Plaintiff was selected as a person subject to investigation to investigate changes in stocks, the period of investigation: 207, 2012, and the period of investigation: from December 15, 2014 to January 28, 2015 (45 days).” The investigating authority made a prior notice of tax investigation that “the Plaintiff was selected as a person subject to investigation to confirm the exercise of convertible rights issued by the Treatment Information System and the factual relation as to whether the title trust is held,” and the Plaintiff filed an application to suspend the tax investigation on three occasions, such as the need for the preparation period of explanatory materials related to the tax investigation.

B) On January 28, 2015, the Plaintiff’s tax agent sent to the Plaintiff 2015 e-mail sent to the Plaintiff 2015 e-mail that “The Plaintiff received 7.5 billion won payment from the Investigative Agency due to the Reconciliation Recommendation Decision,” and that “The Plaintiff was required to submit evidentiary documents concerning the deceased’s criminal case and civil case judgment.”

C) On the other hand, on January 29, 2015, the Investigation Agency requested the Plaintiff and CCC to submit a certificate of “CCC registration,” the entire documents proving the CCC’s business contents (e.g., mail receipt, wage payment, and fee payment), a summary of the CCC’s business history or history, the CCC’s account details and transaction details from 2006 to ever, the CCC’s financial and profit distribution details raised by CCC from beneficial owners (Plaintiff, Deceased, etc.).

4) The instant criminal judgment

A) Details of the judgment

The Deceased was found to have been not guilty of KRW 80,000,000,000,000 KRW 150,000,000,000,000,000,000 KRW 15,000,000,000,000,000,000,000 KRW 15,000,000,000,000,000,000,000 KRW 15,000,000,000,000,000,000 KRW 15,000,000,00,000,000,000,000 KRW 15,000,00,00,00,000,00,00,000,00,000,00,00,00,00.

B) Statement of KYJ

(1) Details of examination of witness

around August 2008, KYJ, around 2008, made the following statements in the examination of the instant criminal case against the Deceased at the Hong Kong branch.

The deceased’s account opened in the CCB bank shall be several individual needs.

There are five answers. There are five answers.

(1) The name of such person shall be

The answer SMK’s Human Sck Sck’scom, KID’s interest presses, CCC), CRYland’s interest, SKY Esk’s interest. There are five foregoings.

The account names of the accounts now talked are the fact that the account names domination.

Examples of the Answer

LHC3) and PLC are the same in relation to this case.

The answer is the answer.

(2) Statement of witness

KYJ made the following statements at the prosecution on May 29, 2008 with respect to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against the Deceased.

The account of the deceased may be kept by all individuals.

The deceased’s account opened in the PCCBB was five. First of all, the deceased’s account was opened in the name of SMK Human SCC, the CCC’s name, the KID’s name, the KID’s name, the SKY’s name, and the CLY Islands’s name. Thereafter, the deceased transferred to BB BB, and the deceased’s account was opened by deducting only three accounts, which were the largest of the deceased’s accounts, from the BB’s name.

It is necessary to determine whether a person who made a statement has determined CCC when he/she would accept overseas convertible bonds of the DDD system in the name of CCC.

As a matter of course, it is determined that the deceased will take over in the name of CCC.

DocCC’s actual account holder is required to be

Before making a reply, the deceased actually transferred to the account opened by the deceased, such as the opinion presented.

If so, 5 corporate accounts, such as CCC, etc., prior to 100 are actually the deceased.

The answer is the example, so.

It is required that the DDD system convertible bonds have been converted into stocks after such conversion.

The answer, the shares were converted into shares on November 2007.

In the event that the deceased’s conversion of DDD system convertible bonds into shares, there was no other word

The answer company may request the conversion of convertible bonds because of fine fine, IPO, and the need for the conversion of convertible bonds.

The CCC, the owner of which is the deceased, and the KKY CY CYland, the actual owner of the deceased, and any company

Directors of the above companies are both PLC (PLC). JHC plays the role of creating and managing the Hong Kong corporations for investors in need of Hong Kong corporations through the company called LFS consortium.

5) Determination of the collection preservation of the instant case

On July 9, 2008, the Seoul Central District Court (2008 Seocho2083) collected or transferred the shares listed in the annexed Form (4) from the third debtor (DDD system), established a pledge, requested transfer of the account, requested transfer of the shares, requested for return of the securities, and conducted any other disposal act against the third debtor (DD system), and the third debtor (DD system) shall not receive the shares, and the third debtor (CCC) shall not issue the shares to the suspect (definite) and the title trustee (CC) or transfer, pay dividends, distribute the residual assets, transfer the accounts, or take any other disposal act, and the third debtor (DD system) shall not deliver the shares to the claimant (the public prosecutor affiliated with the Seoul Central District Public Prosecutor's Office) and the third debtor (the third debtor) shall transfer the shares to the execution officer entrusted by the public prosecutor of PKH under the Seoul Central Public Prosecutor's Office).

(4) Claim to return and deliver shares

m. The right to claim the return of stock(s) and the right to claim the issuance of stock(s) in the name of the CCC with respect to the issuance of the DDR system(s) stock(s) held in the account of HKSYB (UYC) Seoul branch;

○ Indication of the return of shares (share certificates) and the right to claim delivery

- Business name ( issuer): DDR reporting system

- Category code: (Omission)

- Number of shares: 2,031,536 shares

-Account number: (Omission)

○ Name of the person who owns the property: Address

- The person having the actual right to the property: the suspect (the deceased);

- Trustee

gCC;

(Omission) Address (Omission)

○ Name of the third obligor: Address;

- Name Diplomatic System

- Address (Omission)

○ Scope of effect

- With respect to the shares above, a consolidation or split of shares, a merger of a company, a capital increase without compensation, etc. are made after the determination of an order of preservation for collection of the shares, and when new shares have been issued, a return of the shares newly issued and a right to claim the issuance of the shares thereafter.

- When new shares (share certificates) have been issued again for the foregoing shares (share certificates), the refund of such newly issued shares (share certificates) and the right to claim delivery of such shares (share certificates);

6) The civil judgment of the instant case

EE: (1) Seoul Central District Court (201. 41. 50) paid the deceased 20 billion won to 30 billion won under the name of 126,386 shares of the DD system (the separate shares of this case) and filed a lawsuit seeking to deliver share certificates of 2,031,536 shares (the shares of this case) to 30 billion won in the name of 200,000,000 won to 30,000,000 won, and the above court did not have a duty of 1.16,000,000 won to 200,000,000 won to 30,000 won in the above 30,000,000 won in the judgment of 20,000 won in the name of 3,000,000 won in the judgment of 2,000,000 won in the judgment of 2,011.

7) The shareholders of the CCC are as follows:

The name of a legal entity (name)

Relation

Number of Stocks

Ratio of Shares

LFIS Contact Ltd.

(hereinafter referred to as "neaches").

Agency for the establishment of Pucom Company

1 Shares

50%

JYC

LFIS Staff

1 Shares

50%

8) On September 13, 2013, the taxpayer protection officer of the ○○ regional tax office notified the Director 3 Director of the ○○ regional tax office (director 1 of the investigation division) of the result of the resolution of the advisory committee on assessment of taxation facts. The main text of the investigation document on taxation issues attached to the above notification, and the main contents of the list and the separate lists are as follows:

A written investigation of tax issues;

I. Summary

Ⅱ. Facts and arguments

1. Factual basis

The facts stated in the court judgment.

(1) Status of the Deceased, EE, etc.

- The Deceased exercises his voting rights on the aggregate of 2,157,922 shares held in his name and CCC and plays a role as the largest shareholder of the DDR system.

Each note 4) USD 100 USD 100 dollars: Although there is no separate note in the High Court's decision, according to the testimony of the Seoul Central Court (the first instance court) by the witness KJ, the phrase "the value of USD 100 USJ 100 dollars may be recognized as having been formally written in order to avoid problems under the Hong Kong law that may arise when ○○ (the deceased) donated free of charge (p.59)."

Added List

From 1 to 3 (Omission)

4. Seoul Central District Court (the first instance court) (201Gahap 41050,00).

5 to 12 (Omission)

9) On August 2014, the Investigation Agency prepared a review table for the selection of the deceased’s investigation. The aforementioned review table states that “the network acquires overseas convertible bonds issued by the DDD system under the name of CCC (2006) that is a corporation located in Hong Kong (2007) and then convert them into stocks (2007), there is a suspicion of non-reporting profits and stock title trust. For the foregoing reason, the said taxpayer (the deceased) is to be selected as a person subject to investigation.”

[Ground of recognition] Facts without dispute, Gap's statements, Gap's statements, 7, 8, 10 through 16, 18, 20, Eul's statements, 1 through 5, 8, 11, 12, 14 through 17 (including each number for those with a serial number), and the purport of the whole pleadings

D. Determination

1) Whether it is an illegal duplicate investigation

A) Relevant legal principles

Article 81-4 (2) of the former Framework Act on National Taxes provides that "tax officials shall not conduct re-audit on the same item of tax and the same taxable period unless there is clear evidence to prove a suspicion of tax evasion (Article 81-4 (1) 1), where investigation is necessary (Article 66 (2) 2), where errors are found in relation to more than two taxable periods (Article 66 (1) 3), where necessary disposition is decided pursuant to Article 65 (1) 3 (including cases applied mutatis mutandis under Articles 6 (6) and 81), where an investigation is conducted pursuant to a decision of re-investigation pursuant to Article 81-15 (4) 2 (Article 66 (4) 4), or in other cases similar to subparagraphs 1 through 4 (Article 66 (4) 5)."

B) Whether it is a tax investigation

In light of the above facts, the first tax investigation of this case and the tax investigation of this case are identical to those of the person subject to investigation (the deceased), the items of investigation (Gift) and the period of investigation (2006-2007). Thus, the issue of this case is whether the tax investigation of this case constitutes "tax investigation under Article 81-4 of the former Framework Act on National Taxes", and if so, whether the investigation of this case constitutes "tax investigation under Article 81-4 (2) 1 of the former Framework Act on National Taxes" at the time of the tax investigation of this case.

It is difficult to determine whether an investigation by a tax official constitutes "tax investigation prohibited by re-audit" in a specific case by comprehensively taking into account the purpose and process of the investigation, subjects, methods and contents of the investigation, data obtained through the investigation, scale and period of the investigation, etc. However, it is difficult to regard it as "tax investigation prohibited by re-audit in principle where it is expected that a taxpayer can easily respond to the investigation or there is no significant impact on the taxpayer's freedom of business operation, etc., but it is difficult to regard it as "tax investigation prohibited by re-audit" in principle, in case where a tax official's investigation is conducted for the purpose of determining or correcting the tax base and amount of tax in fact, directly contact the taxpayer, etc. on a considerable period of time in the office, workplace, factory, residence, etc. of the taxpayer, etc., ask questions, or inspect and investigate books, documents, articles, etc. for a certain period of time, barring any special circumstances (see, e.g., Supreme Court Decision 2016Du3684, Mar. 26, 2017).

In full view of the evidence and the overall purport of the arguments as seen earlier, the Investigation Agency: (i) made prior notification of the tax investigation before conducting the tax investigation of this case with the Plaintiff on the tax item subject to investigation, the period of investigation, the period of investigation, the reason for investigation, etc.; (ii) the Plaintiff filed an application with the Investigation Agency for the suspension of the tax investigation of this case on three occasions for such reasons as the need for the preparation period of explanatory materials related to the tax investigation; and (iii) the Plaintiff’s agent appointed the agent to respond to the tax investigation of this case; (iv) the Plaintiff’s agent requested the EE for submission of documentary evidence and evidence of KRW 7.5 billion paid by the networks from the Investigation Agency around 2013 regarding the settlement recommendation of this case; (iv) the Investigation Agency sent e-mail to the Plaintiff and CCC on the tax investigation of this case; (iii) the Plaintiff’s content of the tax investigation, such as the payment of postal materials, the payment of wages, and the payment of fees, etc.; and (iii) the Plaintiff’s business profit and profit distribution of the account of this case.

C) Whether there is obvious evidence to prove the suspicion of tax evasion

On September 13, 2013, a taxpayer protection officer of ○○ Regional Tax Office sent to the Director of the 3rd Investigation Bureau (the Director of the 1st Investigation Office) of the instant tax investigation. The main text of the investigation report on taxation issues attached to the notification of the Advisory Committee's decision on September 13, 2013, stating that "the net shall exercise voting rights to 2,157,922 shares owned by himself and CCC and play the role as the largest shareholder of the DDR system." Each share includes the detailed statement of the civil judgment of this case, and the list of separate lists include the civil judgment of this case. ② The examination table of the deceased's tax investigation prepared around September 8, 2014, which had been conducted by the 1st Investigation Office, stated that it constitutes a criminal investigation of this case's shares under the name of the 1st Investigation Agency, and thus, it is reasonable to consider that it constitutes a criminal investigation of this case's shares under the name of this case.

2) Whether the title trust agreement exists

The provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act shall apply in cases where the actual owner and the nominal owner enter into an agreement or communication and make registration, etc. in the future of the nominal owner, regardless of the intent of the nominal owner. In such a case, the tax authority can only prove that the actual owner is different from the nominal owner, and the verification that the registration, etc. of the nominal owner was made in the unilateral act of the actual owner regardless of the intent of the nominal owner should be made by the nominal owner (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 2008). In addition, the title trust relationship is not necessarily established by an express contract between the truster and the trustee, but may also be established by an implied agreement (see, e.g., Supreme Court Decision 2000Da49091, Jan. 5, 2001).

The facts of the above recognition are as follows: evidence as mentioned above, Eul evidence as mentioned in subparagraph 6, and the whole pleading.

In full view of the following circumstances, i.e., “CC” in the civil judgment of this case

person, for the purpose of managing its own assets, shall be incorporated in Hong Kong by $2 in Hong Kong and by two weeks in outstanding shares

(4) As to the instant criminal judgment against the Deceased, KYC, which actually managed the deceased’s account in its investigation agency and court, provides a substitute shareholder or proxy director to the CC. CCC was the actual owner of the deceased’s shares, and both directors of the above company were JC. YC. In light of the fact that CCC established the Hong Kong-based company’s shares under the name of the deceased and its actual owner, and that CCC-based company did not actually own the rights to dispose of the deceased’s shares under the name of the deceased’s personal company or because it did not have any substance. As to the instant criminal judgment against the deceased, KYC, which was in charge of managing the deceased’s account, provided that the CC-based company and its actual owner of the shares were to have the rights to dispose of the shares under the name of the deceased’s own shares, and that CCC-based company’s shares were to have the rights to dispose of the shares under the name of the deceased’s own shares. As such, CCC-based company and its actual interest to the Plaintiff’s shares.

3) Whether there is no purpose of tax avoidance

The purpose of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to realize the tax justice by effectively preventing the title trust act in which the actual owner of the property is nominal for the purpose of tax avoidance, only in the name of another person. Thus, if it is recognized that the title trust act was conducted for the purpose other than the purpose of tax avoidance and that the minor reduction of taxes incidental thereto was generated, such act of title trust cannot be deemed as a donation by deeming that there was a tax avoidance purpose. However, in light of the legislative intent above, inasmuch as the purpose of the title trust is not included in the purpose of the title trust, it shall not be deemed as a donation only if the purpose of the title trust is not included

If it is recognized that it is still deemed as a gift, it shall be deemed as still deemed as a gift (see, e.g., Supreme Court Decision 2011Du10232, Feb. 21, 2017).

In addition, whether there was an objective of tax avoidance or not should be determined at the time of title trust, and then whether it was actually evaded (see, e.g., Supreme Court Decisions 2003Du4300, Jan. 27, 2005). Meanwhile, the burden of proving that there was no objective of tax avoidance may be proven by means of proving that there was a purpose of tax avoidance, other than the purpose of tax avoidance, with respect to the fact that there was no objective of tax avoidance. However, as the nominal owner who bears the burden of proof, there was an obvious purpose of tax avoidance or irrelevant to the degree that it is recognized that there was no objective of tax avoidance in the title trust, and the fact that there was no tax avoidance at the time of the title trust or that there was no tax avoidance at the time of the title trust or in the future should be proved to the extent that there was no doubt if it was ordinary by objective and conclusive evidence (see, e.g., Supreme Court Decisions 2004Du1220, Sept. 22, 2006; 2013>

In light of the following circumstances, the Plaintiff did not assert and prove that the deceased acquired the instant convertible bonds and shares in the name of CCC for the purpose of investment. However, if the Plaintiff was an investment purpose, it appears that the deceased would have been able to invest in the instant convertible bonds and shares in the name of the deceased, or through domestic or foreign investment companies, rather than the method of title trust, but did not do so, the deceased did not report the inheritance tax in the Republic of Korea even though the Plaintiff succeeded to the instant convertible bonds and shares from CCC, and the instant convertible bonds and shares were externally owned by the holders of the instant convertible bonds and shares due to the title trust, and the Plaintiff, his heir, despite the fact that the Plaintiff formed the appearance of the instant convertible bonds and shares excluded from the inherited property, it is difficult to view that there was no obvious purpose of tax avoidance and tax avoidance in light of all the circumstances such as the fact that the instant convertible bonds and shares were in the name of the deceased.

4) Regarding the assertion that an investment is permissible under domestic law

Article 14(1) of the Framework Act on National Taxes declares the principle of substantial taxation by stipulating that if the ownership of income, profit, property, act, or transaction subject to taxation is merely nominal, and there is another person to whom such income, profit, property, act, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable to pay taxes. Accordingly, if there is a separate person who substantially controls and manages the income, profit, property, act, transaction, etc. different from the nominal person to whom such income, profit, or transaction belongs, the nominal person for whom such income, profit, act, or transaction belongs shall not be the person to whom such income, profit, or appearance belongs, but the person who substantially controls and manages the relevant taxable subject to taxation pursuant to the principle of substantial taxation shall be the person to whom such income, profit, or appearance belongs as the taxpayer. Furthermore, the determination of such case should be made by comprehensively taking into account various circumstances such as the developments leading to the use of the nominal person’s name, the degree and scope of involvement of the nominal person, internal responsibility and calculation relationship

However, even if a foreigner’s acquisition of domestic corporation’s stocks through a special purpose corporation is permitted under domestic law, if there is a separate person who substantially controls and manages the subject of taxation, such as income, profit, property, act, transaction, etc. different from the nominal owner, the nominal owner on the ground of type and appearance should be the person who actually controls and manages the subject of taxation pursuant to the substance over form and appearance principle, and thus, if the acquisition of stocks is conducted through a title trust, it shall be deemed that the provision on the constructive gift of title trust under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act can be applied under the substance over form principle. Accordingly, this part of the Plaintiff’s assertion on the different premise is without merit.

5) concerning the administrator's assertion

Article 45-2 (5) of the former Inheritance Tax and Gift Tax Act provides that "The provisions of Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act shall not apply to the case of making a registration of the trust property under the Trust Business Act or the Act on Business of Operating Indirect Investment and Assets

In light of all the circumstances, including the agreement between the deceased and CCC on the management of property, the payment of consideration for property management income, and the use of asset management income, etc., the Plaintiff asserted that CCC is the deceased’s administrator, but the Plaintiff failed to submit data on the contract between the deceased and CCC on the management of property, the payment of consideration for property management income, and the use of asset management income. ② As seen earlier, CCC is a PCC’s supervisor, it is difficult to deem that CCC without any human and material property assets actually performed its role as the deceased’s administrator. ③ If the deceased intended to delegate the management of property of the instant convertible bonds and shares, it appears that the resident or domestic corporation was appointed as the administrator

CCC cannot be deemed an administrator of the Deceased. Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.