Whether it is legitimate to make a claim to the effect that no substantial donation was made

It is difficult to view that the Plaintiff and donor agreed to or consented to the gift of the instant shares, and that there was no actual exercise of rights as a shareholder of the instant shares, and thus, the gift cannot be deemed to have existed.

The legal fiction of donation of title trust property under Article 41-2 of the Inheritance Tax and Gift Tax Act

1. The Defendant’s disposition of imposition of KRW 22,858,750 on the gift tax of KRW 201 on November 1, 2005 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On March 7, 2000, Kim ○, the Plaintiff’s reference, paid 50 million won for the acquisition price of the non-party company’s 50,000 shares at the time of issuing new shares by the non-party △△ Stock Company (hereinafter “non-party 1”). The above shares were acquired.

B. The non-party company prepared a detailed statement of changes in stocks, etc. to be attached to the report for the business year 2000 corporate tax base to be attached to the report, and stated 10,000 shares of 50,000 shares acquired by Kim ○○, the above Kim ○○, and 5,000 shares of 50 shares acquired by Kim ○○, the Plaintiff’s model Kim △△△, the Plaintiff’s model Kim ○, and 13,500 shares acquired by Lee ○○, the Plaintiff’s mother-child, respectively. The non-party company prepared a detailed statement of changes in stocks, etc. to be attached to the report for the business year 2001 corporate tax base to be attached to the report, and submitted it to the head of the tax office of ○○ on October 31, 2001 by stating that the Plaintiff transferred 11,20 shares out of the shares in the name of

C. The head of the ○○○ Tax Office finds out the fact of acquiring shares of the non-party company in the report of the tax base for the business year 2000 and 2001 attached to the non-party company in the process of the on-site investigation of corporate tax without reporting the non-party company from July 15, 2003 to November 30 of the same year. The above Kim △△△△△△△△△△△△△△△△△△△, etc. (hereinafter referred to as “Seoul △△△△△△△△△△”) was donated the amount equivalent to each of the above shares from Kim ○ on March 7, 200, deemed that the above Kim △△△△△△△△△△△△, etc. was donated each of the above shares, and imposed the gift tax for 200 years on the non-party company on May 1, 2004, and on October 31, 2001, the Plaintiff and Kim△△△△△△△△ received some shares from their names.

D. Accordingly, on November 1, 2005, the Defendant imposed KRW 22,858,750 on the Plaintiff on the ground that the Plaintiff received a donation of 11,200 shares of the non-party company (hereinafter “instant shares”) from ○○○○ on October 31, 2001 (hereinafter “the instant shares”). (hereinafter “instant disposition”). The Defendant did not dispute on the ground of recognition”), Gap’s evidence 1,4, Eul’s evidence 1-2, and the purport of the entire pleadings as a whole.

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

(1) The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(A) The donation is established by either party’s declaration of intention to transfer the property to the other party without compensation and the other party’s consent thereto. However, since the Plaintiff did not have resided in the country at the time of donation of the shares from ○○○, and the actual owner of the shares of this case was not seeking consultation or consent on the use of the shareholder’s name under the Statement of Change of Stocks, the agreement between the Plaintiff and ○○○ does not exist.

(B) As long as Kim○ does not have any entry of change in the title of the instant shares to the Plaintiff, the instant shares cannot be deemed to have been transferred to the Plaintiff, and therefore, Kim○ does not have any title trust to the Plaintiff, and thus, the provisions on deemed donation of title trust property cannot be applied.

(2) The defendant's assertion

(A) Although the Plaintiff did not reside in the Republic of Korea at the time of donation of the instant shares, in light of the relationship between the Plaintiff, Kim○, Lee○○, and Lee○○, the Plaintiff appears to have continued contact between the Plaintiff and Kim○, in view of the relationship between the Plaintiff, Kim○, and Lee○, etc., and the Plaintiff was appointed as the representative director of △△ corporation with the same type of business as the non-party company around July 11, 2002 and took over the construction machinery, etc. of the non-party company as it is. At the time of acquisition of the instant shares, the remaining ○○, on whose behalf the Plaintiff was issued the Plaintiff’

(B) Even if the Plaintiff was not a donation of the instant shares from Kim○-○ or Lee○-○, the detailed statement of changes in stocks, etc. submitted at the time of filing a corporate tax base is based on the changes in stocks recorded in the register of shareholders. As such, Kim○-○ or Lee○-○ shall be deemed to have held the instant shares in title trust to the Plaintiff. In such a case, the instant disposition based on the provision on deemed donation of title trust property is lawful.

(b) Related statutes;

The entry in the attached Form shall be as follows.

(c) Fact of recognition;

(1) 소외 회사는 이△△이 1996.12.13. 설립하여 건설장비 임대업을 영위하던 회사로서 이△△은 위 회사의 총발행주식 3만주를 자신 및 처 이□□, 부친 이■■, 친구 성○○의 명의로 소유하고 있었다.

(2) During the loan of the operation fund of the non-party company to the △△△△△, the non-party company was involved in the management of the non-party company by acquiring 50,00 new shares of the non-party company issued on March 7, 200, and thereafter, the △△△△△ was responsible for operating the business, and the Kim ○○ exercised the final approval authority as the chairperson of the non-party company.

(3) Meanwhile, from October 17, 2000 to the United States, the Plaintiff entered the Republic of Korea on June 1, 2001, and returned to the United States again on June 3, 2001, and entered the Republic of Korea again on June 1, 2002, 202, 4, and 8 again, and thereafter repeated entry and departure from Korea at any time thereafter

(4) Since the capital increase with the above capital increase, Kim ○ exercised all the authority of the Nonparty Company as the controlling shareholder and the managerial right holder as well as the Nonparty Company. At the time of the above capital increase with the capital increase, Kim △△ was studying abroad, and the said Kim ○ was in military service.

(5) The decision of the first instance court ordering revocation of the disposition imposing the gift tax was rendered as a result of administrative litigation against the disposition imposing the gift tax by the head of the △△△△△, etc., and the head of the △△△ Tax Office filed an appeal and appeal, but the above appeal was dismissed on February 23, 2007, and the judgment of the first instance became final and conclusive

[Ground of recognition] Unsatisfy, Gap evidence 2-1, Eul evidence 11, the purport of the whole pleadings

C. Determination

(1) Whether the shares of this case were donated

Since the Defendant is aware of the taxable object of the instant disposition as the donation of the instant shares on October 31, 2001, the issue of whether the instant disposition is legitimate depends on whether the instant gift constitutes the transfer of property under the Civil Act. However, in light of the following circumstances based on the above facts established, the Plaintiff and Kim △△△ was studying abroad at the time of issuing new shares by the non-party company or the donation of the instant shares, and it is difficult to recognize that the Plaintiff and Kim ○○ was in agreement with the Plaintiff and Kim ○ or Lee ○○, in view of the circumstances during which he was in military service, or that it was difficult to recognize that Kim ○, the actual owner of the instant shares, requested the Plaintiff, etc. to consult on or consent to the use of the title in the detailed statement on the change of shares, etc., and even after Kim ○○ transferred the shareholder’s name to the Plaintiff, etc., it is difficult to deem that the Plaintiff transferred the instant shares without compensation to the Plaintiff.

(2) Whether it constitutes a title trust

The transfer of registered shares cannot be asserted against the company unless the name and address of the acquisitor are entered in the register of shareholders. Thus, insofar as the transfer of a right, which is the requirement for deemed donation under Article 41-2(1) of the former Inheritance Tax and Gift Tax Act, is not a real owner and the nominal owner, in the property requiring a transfer of a right or an exercise of a right, which is the requirement for deemed donation under Article 41-2(1) of the same Act, insofar as the transfer of a registered shares is not made in the register of shareholders, it cannot be deemed that the actual owner and the nominal owner are different. Since the detailed statement of transfer of shares, which is the document to be submitted at the time of filing the tax base and tax amount of corporate tax, cannot be the same as the list of shareholders, and even if a report was made by entering the situation of transfer of shares in the specification of transfer of shares, it cannot be deemed that the transfer of shares has been made (see, e.g., Supreme Court Decision

Therefore, each of the dispositions of this case based on the premise that the Plaintiff received a gift or title trust of the shares of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.