The early appellate court 2015 Jeon1012

Whether key shares can be viewed as a title trust without any tax avoidance purpose, and whether the penalty tax on improper non-declaration is applied

Since it was not proven that there was no tax to be avoided at the time of title trust or in the future, gift tax shall be paid; however, it is difficult for the Plaintiffs to recognize that the tax base was not reported in an unjust manner under the instant title trust, and thus, it is difficult to apply

Seoul Administrative Court 2015Guhap68864

November 5, 2015

December 17, 2015

1. A. In imposing the gift tax of KRW 106,922,450, which was imposed on Plaintiff A on December 1, 2014 by Defendant V, in excess of KRW 19,205,65,658, which was the penalty tax of KRW 9,602,829, which is the penalty tax of KRW 9,683,210, which is the penalty tax of KRW 3,640,00 which is the penalty tax of KRW 1,820,00 which is the penalty tax of KRW 3,640,00 which is the penalty tax of KRW 1,820,00 which is the penalty tax of KRW 20,00 which is the penalty tax of KRW 2

B. In imposing gift tax of KRW 7,056,260 on Plaintiff BB on December 1, 2014, the portion exceeding KRW 508,570 out of the amount of penalty tax of KRW 1,017,141 and the portion exceeding KRW 10,604,450 of the amount of penalty tax of KRW 1,983,38 of the amount of penalty tax of KRW 991,694 of the amount of penalty tax of KRW 2008 shall be revoked.

2. Each claim by Plaintiffs AA and CCC against Defendant MM and all remaining claims by Plaintiffs AA, BB, and W against Defendant SS, and VV are dismissed.

3. Of the costs of lawsuit, the portion arising between the plaintiffs AA, CCC and the defendant MM is borne by the above plaintiffs, and 80% of the portion arising between the plaintiffs AA, BB, W and the defendant SS and V is borne by the above plaintiffs, and the remainder is borne by the above defendants.

Cheong-gu Office

The imposition of each gift tax (including additional tax) on the details of the attached disposition that the Defendants filed against the Plaintiffs is revoked (as of February 26, 2015, the National Tax Service succeeded to Defendant VV’s authority to impose gift tax on Plaintiff AA and W on Plaintiff AA, and W, due to changes in the organization of the National Tax Service, it shall be deemed that Defendant LL was made, as described in the original NN’s intent, on its members).

1. Details of the disposition;

A. From June 12, 200 to November 30, 201, DD respectively held the title trust of 636,365 shares (hereinafter “instant shares”) in the aggregate of the non-listed shares of KKtezers Co., Ltd. (hereinafter “instant company”) to the Plaintiffs and HG as indicated in the following table (in the case of title trust held on September 15, 2008, D took the form of transferring the shares held by D in its own name to the Plaintiff AA and WW, and except that, DD acquired the shares of the instant company from a third party and transferred them to each of the relevant Plaintiffs).

나. 원고 BBB는 DD의 처, 원고 AAA, CCC는 DD의 처남, 원고 WWW은 DD의 처남댁, HG은 DD의 장모이다.

C. D on March 29, 2012, sold the entire shares of the instant case to AS, and reported and paid each transfer income tax on the transfer of shares in the names of the Plaintiffs other than Plaintiff CCC and HG.

D. After that, NN conducted an investigation into capital gains tax from September 11, 2014 to October 10, 2014, and the Defendants determined and notified each of the following dispositions (including additional tax; hereinafter referred to as “each of the instant dispositions”) to the Plaintiffs on the ground that DG each of the instant shares was held in title trust with the Plaintiffs and HG (the gift tax for HG was notified to the Plaintiff AA, its heir, upon the death of HG) on the ground that DG each of the instant shares was held in title trust with the Plaintiffs (the gift tax for HG was reverted to year 200).

E. The Plaintiffs were dissatisfied with each of the instant dispositions by the Defendants and filed an appeal with the Tax Tribunal on January 30, 2015 and February 6, 2015, respectively, but all of the appeals were dismissed on May 21, 2015.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 7 (including each number), Eul Nos. 1, 2 and 10

Each entry of evidence, the purport of the whole pleading

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

Although it was true that D has held the title trust of the shares of this case, it was because it was considered that it would be the name of the spouse or the wife's consciousness, and also, in order to protect the amount of investment as a shareholder, it was held in title trust with a view to allowing it to participate in the management of the side-side consciousness in order to protect the amount of investment amount. ① D and the Plaintiffs, as a trustee, fall under a person with a special relationship under tax law, and D are unable to avoid the oligopolistic shareholder by deeming D as it constitutes a title trust, ② the cumulative rate of the shares held by D and the shares held in title trust to the Plaintiffs did not reach the deemed acquisition tax, and thus, deemed acquisition tax was not avoided, ③ the transfer income tax and securities transaction tax was not reported due to the shares transferred in the name of Plaintiff CCC, but this is based on a single tax rate, which is not a tax that can be avoided through a title trust.

On the other hand, even if the entire imposition of each of the instant dispositions cannot be revoked, the general additional tax rate shall apply to general tax amounts not falling under the crime of tax evasion. Therefore, the portion of applying the unfair non-reported additional tax rate (40%) shall be revoked.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) As of each date of title trust, D’s share ratio is as listed in the following table (including borrowed-name shares):

2) In the course of a tax investigation, DD stated that it was a nominal trust with the Plaintiffs, upon obtaining advice from KKK that it was more favorable for it to register the instant shares in the name of a person who was the president and the major shareholder, and that it was more favorable for it to register the instant shares in the name of a person who was the management director of the PPPPPPP, which was the major shareholder. In addition, in relation to the title trust as of September 15, 2008, DD stated that it was inevitable for the PPPPPP to trust with Plaintiff AA and W as it is apprehended that the P

3) On March 16, 2004, the company of this case existed at around 184,779,153 won, 298,159,700 won, around March 25, 2005, around 341,876,823 won, around March 25, 2006, around 346,424,60 won, around March 13, 2007, around 350,505,934 won, around March 26, 2008, around 350,50,934 won, around March 30, 2009, around 428,362,731 won, around March 30, 309, around 42,48,425 won, around March 30, 2010, around 308, around 207, 2074;

4) D or Plaintiff CCC did not report and pay capital gains tax regarding the transfer of the instant shares.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 3-1 to 3, Eul evidence Nos. 8 and 9, and the purport of the whole pleadings

D. Determination

1) Whether the purpose of tax avoidance exists

A) The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201) is to recognize an exception to the substance over form principle to the effect that the act of tax avoidance is effectively prevented and realize the tax justice by effectively preventing the act of tax avoidance using the title trust system. Thus, the proviso of the same Article shall apply only where the purpose of the title trust is not included in the purpose of the tax avoidance. In this case, the burden of proving that there was no purpose of the tax avoidance exists in the name of the claimant. Therefore, with regard to the absence of the purpose of the tax avoidance, the burden of proving that there was no other purpose of the tax avoidance can be proved by the method, such as proving that there was no other purpose of the tax avoidance. However, as the title holder who bears the burden of proving the burden of proof, there was an obvious objective objective purpose of the tax avoidance in the title trust, and there was no tax avoidance in the future at the time of the title trust (see, e.g., Supreme Court Decision 2002Du124Du124, Sept.

Meanwhile, if it is recognized that the title trust was made for another reason, not for the purpose of tax avoidance, and it is merely a minor reduction of tax incidental to the title trust, it cannot be readily concluded that there was the purpose of tax avoidance in such title trust. However, if it is deemed that there was an intention of tax avoidance as well as any other main purpose, it cannot be said that there was no intention of tax avoidance (see, e.g., Supreme Court Decision 2007Du19331, Apr. 9, 2009). Whether there was an intention of tax avoidance or not should be determined at the time of the title trust, which is the issue of whether there was a legal fiction of gift from the title trust, and it should not be determined as whether there was a real evasion of tax after the title trust (see, e.g., Supreme Court Decision 2003Du4300, Jan. 27,

B) In light of the above legal principles, the following circumstances revealed in the instant case’s return to the health team, namely, ① the accumulated earned surplus in the instant company, which could have been expected to be distributed to the dividend income. However, DD appears to have been able to avoid a substantial amount of global income tax by distributed the instant stocks under title trust; ② DD could have avoided a transfer income tax or gift tax in the event of transfer or donation of the instant stocks to the Plaintiffs, a title trustee, who is a special relationship; ③ the transfer of stocks under the Plaintiff CCC did not pay the transfer income tax; ④ the transfer of stocks under the Plaintiff CCC’s name was not paid; ④ It is difficult to understand the assertion that DD merely transferred the instant stocks under the name of the spouse or the wife, and there was no objective evidence to acknowledge that the title trust was inevitable to protect the amount of investment or management; ⑤ The examination of all other evidence submitted by the Plaintiffs also did not clearly reveal any other reason for tax evasion or tax evasion in the future.

Therefore, this part of the plaintiffs' assertion is without merit.

2) Whether the imposition of unfair non-reported penalty tax is legitimate

A) According to Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011); where a taxpayer has a duty to report the tax base or amount of national taxes by improper means (referring to any method prescribed by Presidential Decree as violating the duty to report the tax base or amount of national taxes on the basis of concealing or pretending all or part of the fact that serves as the basis for calculating the tax base or amount of national taxes), an amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax amount by the ratio occupied by the amount of tax base without report in an unjust manner to the tax base by the calculated tax amount shall be added to or deducted from the payable tax amount. Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012) provides that a taxpayer shall actively obtain or conceal a false entry in the account book (Article 1), false evidence or false documents (Article 27(3).4).

B) Comprehensively taking account of all the following circumstances revealed by the facts in the instant case, it is difficult to recognize that the Plaintiffs did not report the gift tax base according to the instant title trust and did not report the gift tax base in an unjust manner, and thus, it is difficult to recognize that the Plaintiffs filed a non-declaration of the tax base in an unfair manner. Therefore, the unfair non-declaration of tax (40

① The penalty tax on an unfair non-reported return is a penalty tax on a specific tax subject to reporting by concealing and citing the fact that serves as the basis of the tax base, etc. in an unfair manner, and in the case of deemed donation, the fact that serves as the basis of the tax base, etc. is the title trust, since the subject of reporting is based on the title trust. Therefore, even if the subject of the concealment and family head is limited to the title trust itself, it is difficult to deem that the subject of the concealment and family head is the basis of the tax avoided from the title trust in this case. In other words, even if the title trust in this case was concealed and concealed from the underlying fact of another tax, it is reasonable to deem that it cannot be the basis of the penalty tax on an unfair non-reported return on the gift tax due to the

② Even if the Plaintiffs, who are the title trustee, acted externally as the right holder pursuant to the title trust agreement, are merely incidental to the process of title trust of valid shares, it is difficult to readily conclude that the act of concealing and inducing the relevant title trust through the preparation, fabrication, and concealment of false documents.

(3) Even if a gift tax is levied due to a deemed donation, the substance of the relevant transaction is not determined as a gift (see, e.g., Supreme Court Decision 2002Du12137, Sept. 24, 2004). Ultimately, the gift tax resulting from a deemed donation is a kind of sanction on title trust for the purpose of tax avoidance (see, e.g., Constitutional Court en banc Decision 2012Hun-Ba259, Sept. 26, 2013). It is substantially an excessive sanction on title trust for the purpose of tax avoidance.

C) Therefore, in each of the instant dispositions, the portion exceeding the amount calculated by applying the general non-reported penalty tax rate (20%) out of the amount of penalty tax (20%) to be imposed on Plaintiff A on December 1, 2014, namely, the portion exceeding KRW 106,922,450 of the amount of penalty tax for the gift tax for the year 2008, which was imposed on Plaintiff AB, and the portion exceeding KRW 9,602,829 of the amount of penalty tax for the gift tax for the year 2008, which was imposed on Plaintiff BW, and the portion exceeding KRW 18,683,210 of the amount of penalty tax for the gift tax for the year 208, which was imposed on Plaintiff CW, exceeds KRW 3,640,00,00, KRW 1,820 of the amount of penalty tax for the gift tax for the gift tax for the year 208, KRW 1605, KRW 3015, KRW 4017, KRW 19408.

[On the other hand, the plaintiffs asserts that the additional tax rate for unfaithful payment included in the disposition of this case is illegal. However, the additional tax for unfaithful payment is calculated by multiplying the unpaid tax amount by the unpaid payment period and a certain interest rate or rate, and Article 47-2 of the Framework Act on National Taxes was amended by Act No. 8139 on December 30, 2006, and Article 7(5) of the Addenda of the above Act was amended by Article 47-2, and Article 7(5) of the Addenda of the above Act was amended by the first donation after the enforcement of the above Act (amended by Act No. 8139 on January 1, 2007). According to the above evidence, it is recognized that the unfair return rate for late 208 and 2011 was applied among the dispositions of this case, and there is no reason to deem that the aforementioned part of the plaintiffs' assertion was also applied to the erroneous payment.

3. Conclusion

Therefore, each claim against the Defendant SSS and VV by Plaintiff AA, BB, and W is accepted within the scope of the above recognition, and the remainder of each claim is dismissed as it is without merit. Each claim against Plaintiff AA and CCC against Defendant MM is dismissed as it is without merit. It is so decided as per Disposition.

Relevant statutes

/ former Inheritance Tax and Gift Tax Act (Amended by Act No. 11130, Dec. 31, 201)

Article 45-2 (Legal Fiction as Donation of Title Trust Property)

(1) Property (excluding land and buildings; hereafter the same shall apply in this Article) which requires registration, etc. for the transfer or exercise of rights.

(u) If the actual owner is different from the actual owner, the actual owner shall do so, notwithstanding Article 14 of the Framework Act on National Taxes.

Ownership shall be held on the date when the property is registered, etc. as the nominal owner (where the property is subject to transfer, ownership shall be held.

In fact, the nominal owner of the value of the property at the end of the year following the year in which the date of acquisition falls;

A donation shall be deemed granted from the owner: Provided, That any of the following cases shall apply:

this shall not apply.

1. Registration, etc. of property or actual acquisition of ownership under another person's name without any purpose of tax evasion;

Where the change of ownership is not made in the name of the owner;

(6) The term "taxes" in paragraphs (1) 1 and (2) means the national taxes as provided in subparagraphs 1 and 7 of Article 2 of the Framework Act on National Taxes.

Local taxes and customs duties prescribed in the Customs Act.

(1) The former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201)

Article 47-2 (Additional Tax on Non-Filing)

(1) A taxpayer (excluding those exempted from liability for payment pursuant to Article 29 of the Value-Added Tax Act) shall file a statutory return.

up to the date of filing a tax base return under tax-related Acts, calculated tax under tax-related Acts.

In the case of taxes, corporate tax on capital gains on land, etc. under Article 55-2 of the Corporate Tax Act shall be included;

In cases of inheritance tax and gift tax, it shall be added pursuant to Article 27 or 57 of the Inheritance Tax and Gift Tax Act.

The amount shall be included, and for value-added taxes, pursuant to Articles 17 and 26 (2) of the Value-Added Tax Act.

2. Amount equivalent to 20/100 of the tax amount to be paid; and

any tax payable or payable shall be deducted from the amount of such tax: Provided, That this shall not apply to a return prescribed by Presidential Decree.

A person liable for food service (hereinafter referred to as "person liable for double-entry bookkeeping") or a corporation shall make a tax base return of income tax.

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20/100 of the calculated tax amount when a return of tax base of a book or corporate tax is not filed;

The amount of income tax payable whichever is greater between the amount to be paid and the amount calculated by multiplying the amount of income by 7/1000.

The tax amount to be added or refundable shall be deducted from the corporate tax amount.

(2) Notwithstanding the provisions of paragraph (1), unfair methods (the taxpayer becomes a basis for calculating the tax base or amount of national taxes).

tax base or amount of national tax on the basis of the concealment or pretending of all or part of the

(1) A person who violates his/her duty, as specified by Presidential Decree; hereafter the same shall apply in this Section)

tax base without filing a return (for value-added tax, Articles 17 and 26 (2) of the Value-Added Tax Act;

In cases where there is a tax base under this Section, referring to the amount of tax payable; hereinafter the same shall apply), the following:

The sum of the amounts under the following subparagraphs shall be added to or deducted from the amount of tax payable:

1. Penalty tax on a non-reported tax base by improper means: No tax base by improper means;

The amount equivalent to the reported tax base (hereafter in this paragraph, the illegal non-reported tax base)

40/100 of the amount calculated by multiplying the ratio occupied in the tax standards by the calculated tax amount;

Amount of money (hereinafter referred to as "amount of penalty tax for not-reported return" in this paragraph): Provided, That a person subject to double-entry bookkeeping or corporation

In the event that a return of tax base of income tax or corporate tax is not filed, the register;

The amount of penalty tax to be reported under this section and the amount of income related to the tax base which is not reported in an unjust manner;

amount calculated by multiplying the amount of unfair non-reported income by 14/10,000, whichever is larger.

section 60.

The Addenda No. 8139, Dec. 30, 2006

Article 7 (Application of Additional Tax on Non-Filing, etc.)

(5) The amended provisions concerning inheritance tax and gift tax among the amended provisions of Articles 47-2 through 47-5 shall be the time of this Act.

It shall apply from the first inheritance and donation after the conduct.

(1) The former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012)

Article 27 (Additional Tax on Non-Filing)

(2) The method prescribed by Presidential Decree in the part other than the subparagraphs of Article 47-2 (2) of the Act shall be as follows:

means any method that falls under any one.

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1. Making a false entry in books, such as double entry;

2. Preparation of false certification or false documents (hereafter referred to as " false certification, etc." in this Article);

3. Receipt of false certification, etc. (limited to receipt knowing that it is false).

4. Destruction of books and records;

5. Concealment of property, or fabrication or concealment of income, profits, acts or transactions;

6. Other fraudulent and illegal acts to evade national taxes or receive a refund or deduction. Finally.

The original shall be authentic.