National High Court 1994west0699 ( May 2, 1994)

Donations

Dismissal

Since the acquisition of shares at issue is determined to have been made in advance between the parties to the title trust and had an intention to avoid taxes, there was no error in the initial disposition imposing gift tax pursuant to Article 32-2(1) of the Inheritance Tax Act exhibited.

Article 32-2 of the Inheritance Tax Act deemed donation for property registered in the name of a third party)

I dismiss the appeal.

1. Summary of the original disposition;

The claimant is registered as a shareholder of the key corporation that acquired 19,500 shares total of 3,500 shares of 88.6.1,000 shares on the register of shareholders of the OOOO Transport Tourism Co., Ltd. (hereinafter referred to as the "Priority Corporation"), 89.9.28 shares of 2,000 shares, 3,500 shares, 89.12.22 shares, 9.22 shares, 90.4.25 shares, 90.25 shares, and 19,500 shares (hereinafter referred to as "share shares").

The disposition agency decided and notified 103,677,690 won and 18,387,090 won and 18,387,090 won and 50 won and 18,090 won and 93.9.16, 93.16, 93.9.

The claimant filed an appeal on November 12, 93 and filed an appeal on January 31, 94.

2. Opinions of the applicant and the Commissioner of the National Tax Service;

A. The claimant's assertion

The claimant was jointly and severally guaranteed as representative director when the representative director of the OOO electronic company, operated by the representative director of the OOO electronic tourism company, defaulted on May 26, 80, although he did not participate in the investment or capital increase of the OOO electronic company, and the claimant did not have participated in the OOO electronic traffic tourism company or received dividends. As a result, the creditors of the financial institution, etc., were unable to recover debts from the OO electronic company to the OO electronic company, and thus, the creditors of the financial institution, etc. acquired and held the shares in the OO's name without agreement with the claimant to avoid this, and the OO acquired and held the shares in the OO's name without any inevitable reason, and the OOOO cannot acquire and hold the shares in another person's name, and the purpose of tax evasion such as gift tax has not been achieved, the Constitutional Court's decision to the purport of Article 3289Hun-Ga37,97 and 197.37.

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

The Commissioner of the National Tax Service argues that the claimant only lent the name of the claimant, and there was no exercise of rights as a shareholder, and that the disposition agency did not have any tax avoidance purpose. However, according to the fact of investigation by the ordinary regional tax office, the claimant acquired 15,500 shares (4,00 shares for acquisition, 11,500 shares for capital increase, 11,500 shares) at the request of the OO, which is the child of the OOO outside of the claim, and the purchase price was confirmed to have been registered in the register of shareholders, and the 4,000 shares for the claimant who was sold on April 10, 89, and 88.4,00 shares for capital increase and 89.2,99.2,00 shares for 89.3,500 shares and 90.25,000 shares for acquisition and transfer of real estate by the OO or other party to the tax investigation. It is difficult to find that there was an agreement between the O or other party to the tax evasion's.

3. Hearing and determination

A. The dispute is whether the OO, the actual owner of the stocks at issue, holds the stocks in the name of the claimant, and whether it is subject to Article 32-2 of the Inheritance Tax Act.

B. Examining the relevant statutes, etc.

Article 32-2 (1) of the Inheritance Tax Act provides that "where the actual owner and the nominal owner are different with respect to property that requires a transfer or exercise of the right (hereinafter referred to as "registration, etc."), the same shall not apply to cases where a title holder falls under a title trust under Article 7 (2) of the Act on Special Measures for the Registration of Real Estate and where a title holder lends another person's name and registers, etc. in another person's name without the purpose of tax avoidance and where the Presidential Decree prescribes."

The legislative intent of the above provision is to recognize an exception to the substance over form principle in the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Therefore, the reason why the difference between the actual owner and the nominal owner is a limitation under the positive law or a refusal of cooperation from a third party, etc., shall not apply in cases where the registration title was not transferred to the actual owner, or where it is proved that the registration title was not used for the purpose of tax avoidance, and it is not used for the purpose of tax avoidance. Therefore, unless it is proved by the nominal owner, the pertinent property shall be deemed as a donation as a matter of course pursuant to the above provision, and it shall be subject to the gift tax (the same purport as majority of the Act, 91Nu2410, 91.25, etc

C. Examining this recommendation

The claimant's acquisition of 19,500 shares of the 19,500 shares of the Claimant and the acquisition amount is confirmed by the closing statement and the register of shareholders that the above OOO paid the name of the claimant and entered the name of the claimant in the register of shareholders. Accordingly, the claimant's assertion that the OOOO, the actual owner of the 's shares, acquired shares in the name of the claimant by stealing the name of the claimant in order to avoid seizure or compulsory execution, etc. from the creditors due to a large amount of debt obligations, and that it is inevitable to hold shares in the name of the claimant

(1) In order to avoid seizure and compulsory execution of property due to the failure of an OO electronic company other than a claim operated by the OOOOOO electronic company, the claimant inevitably acquired shares by stealing the claimant's name in order to avoid seizure and compulsory execution of property due to a large amount of debt, and upon examining the following: ① Statement of Property Provisional Seizure ② Statement of Compulsory Execution, etc. is presented as evidentiary materials: (a) it can be known that the real estate owned by the OOO was subject to provisional seizure and compulsory execution against the Korea Credit Guarantee Fund, etc.; and (b) it is difficult for the OOO to possess the property under the name of another

(2) However, the OOO transferred its own property to its children (OO,OOO,OO, andOO tourism industry) and to their children (OO,O,O,O, and 65 years old as the president of five corporations (OO, O development (State), OO, O, O, and OO tourism industry) other than the main corporation, but there was no fact that the OOO transferred its own property to their children (OO,OO,O, andO), while there was no report or payment of gift tax.

(3) In particular, it is difficult to deny that there was no purpose to reduce or avoid the burden of global income tax and ex post facto inheritance tax by putting the stocks of 5 corporations, other than the key corporations, which are the actual owners, under the name of 2 through 3 or less under the name of 13 or a disguised decentralization, even though it is possible to own the stocks in title trust or disguised decentralization under the name of 2 through 3 or more of 2 or less of 13 persons, and by putting the stocks of 5 corporations, other than the key corporations, which are the actual owners, under the name of 34 persons such as the above 6 corporations and others

(4) The claimant had owned the shares by abusing the name of the claimant without prior communication as to title trust between the non-claim owner and the non-claim owner of the outstanding shares. However, the claimant's claim that the non-claim owner had participated in the increase of capital and the occupation (OOOOO) etc. in the number of times after the acquisition of shares in 88 years after the acquisition of the shares. In addition, there seems to be no credibility, and it is difficult to accept the claim's assertion that the non-claim owner had obtained the identity theft as well as there is no offer of evidence to prove the identity theft.

Therefore, the registration of OOO, the actual owner of the outstanding shares registered in the claimant's name, in the future of the claimant who is the nominal owner is judged to have a purpose of tax avoidance rather than due to unavoidable circumstances. Therefore, the initial disposition that was imposed by applying the provision on deemed donation under Article 32-2 of the Inheritance Tax Act is not erroneous.

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.