Seoul Administrative Court-2016-Gu Partnership-61303 ( October 23, 2018)

Since the fact that the Plaintiff held the instant shares in title trust is recognized, it is legitimate to apply the provision on deemed donation under Article 45-2 of the Inheritance Tax and Gift Tax

It is evident that the Plaintiff, a substantial private shareholder at the time of the second subscription for new shares, received new shares in the name of the title trustee. At the time, the Plaintiff had a tax avoidance purpose because it is likely to avoid secondary tax liability as an oligopolistic shareholder, and the method of stock assessment (Supplementary assessment) of the unlisted corporation is legitimate.

The legal fiction of donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2018Nu43530 Revocation of Disposition of Imposition of Gift Tax

hBB

○ Head of tax office

December 18, 2018

January 29, 2019

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the imposition of the gift tax of KRW 414,078,530 (including the penalty tax) on December 5, 2011 against the plaintiff on December 5, 2013.

1. Quotation of judgment of the first instance;

The reasoning for the judgment of the court in this case is as stated in the reasoning for the judgment of the court of first instance except for the following parts to be used or added. Thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act

○ At the 6th bottom of the judgment of the first instance, 3, 7, 2, and 2 under the bottom of the judgment shall be carried out by 'the witness of the first instance court'.

○ At the bottom of the 8th judgment of the first instance court, the following shall be added:

In addition, at the time of the acquisition of AAA construction, the Plaintiff was unable to prepare the acquisition price of shares, and only west, F, and SE were held as shares because it was no longer sufficient time to prepare the acquisition price of shares. Since the enemy of AA construction in 2007 continues to withdraw and withdraw DoD and then the shares were allocated to YG, F, and SE, and eventually, the instant shares were not owned by the Plaintiff from the beginning. However, it is insufficient to view that the evidence submitted by the Plaintiff alone was insufficient to deem that the Plaintiff did not have the ability to prepare the acquisition price of shares at the time of the acquisition of AA construction, or that DoD renounced renounced and retired from the shares due to the deficit of AA construction, and there is no other evidence to acknowledge otherwise (or, according to reference materials attached to the reference documents submitted by the Defendant on January 3, 2019, the Plaintiff discontinued the above corporation while closing its business, and that the Plaintiff’s net income at the time of the acquisition of AA construction was no more than KRW 1005 billion.

D) Even if the instant shares were held in title trust, the Plaintiff asserts that the instant shares were held in title trust with west, which was held for the first time in 2004, and were transferred to KaG and YK in order. As such, the instant disposition based on the premise that the instant shares were held in title trust with GG and YK rather than westD is unlawful. However, as seen earlier, insofar as the Plaintiff acknowledged that the instant shares were held in title trust with Y, the provision on the constructive gift under Article 45-2 of the former Inheritance Tax and Gift Tax Act is applicable to west, and as the Plaintiff’s assertion, the instant shares were held in title trust with west and MaG again, and thus, it does not change from the ground that the Plaintiff’s assertion that the instant shares were held in title trust with west and MaG, which was held in succession (Supreme Court Decision 2011Du10232 Decided February 21, 2017, etc., which was required by 2017).

○ ○ 10th 2th 10th son of the judgment of the first instance court added ‘(2th 6th 2th 6th 6th 6th 6th 6th 6th 6th 6th)

2. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit.