early 209 Heavy2992 ( November 03, 2009)

The disposition imposing gift tax is legitimate because it constitutes a stock trust.

Since shares are trusted in title, and the comprehensive income tax is imposed less on cash dividend as a result of the disposal of surplus funds at the time of the settlement of accounts of a corporation, it cannot be deemed that there was no purpose of tax avoidance. Since the market price is unclear, the disposition imposing gift tax is legitimate by calculating the market price as a supplementary assessment method

2010Guhap1362 Revocation of Disposition of Imposition of Gift Tax

1.A 2.GovernmentB

○ Head of tax office

April 7, 2011

May 12, 201

1. All of the plaintiffs' claims are dismissed.

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

On May 7, 2009, the Defendant revoked the imposition of KRW 204,109,50, and KRW 95,291,000, and KRW 95,291,00,00, on the gift tax against Plaintiff OB.

1. Details of the disposition;

A. The largestCC and the largestD are co-representatives of △△△ (the company before December 17, 2001, hereinafter referred to as the "company of this case") and owned 1/2 (375,000 shares) each of the above company's non-listed shares as 1/2 (375,000 shares). On October 29, 2001, the largestCC owned 375,000 shares from 30,000 shares to 30,000 shares (hereinafter referred to as "the shares of this case") to the largest shareholder of the company of this case, 75,00 shares, 112,50 shares (hereinafter referred to as "the shares of this case"), and 300 shares (hereinafter referred to as "37,50 shares") were transferred to the above largest shareholder of the above largest DD to the plaintiff of this case.

B. On March 4, 2002, the above maximumCC reported and paid KRW 227,119,500 capital gains tax by transferring the instant shares to the head of Sungnam Tax Office to KRW 9,300 per share.

C. From November 1, 2005 to April 11, 2007, the Defendant conducted a tax investigation with respect to the above company, and assessed the value per share of the instant 1,2, and 10,542 won applying a premium rate of 30% from major shareholders to 109, and assessed the value per share of the instant 1,2, and 300,542 won as the maximum amount of gift tax to the Plaintiffs and E, respectively, in the process of concluding that the instant 1, 2, and 3 shares were to be returned under the name of Do principal by pretending to be the sale and purchase of the instant Do principal. Accordingly, on July 2, 2007, the Defendant assessed the value per share of the instant 1,200 to 8,109 to 10,542 won, and assessed the donor as the maximum amount of gift tax to 30,019, 206, 306, 196, 2001.

D. Accordingly, the Plaintiffs filed a request with the Tax Tribunal on October 9, 2007. On January 20, 2009, the Tax Tribunal rendered a decision to revoke the imposition of each gift tax on the ground that it is unfair to consider the maximumCC as a donor and impose gift tax on the ground that the pertinent shares were owned by the largestCC from the beginning of the year of peta to the beginning of the year of 2009, and that the acquisition price was paid from the maximum DNA.

E. Accordingly, on May 7, 2009, the Defendant: (a) purchased the instant shares from the largestCC; and (b) held the instant shares in title trust with the Plaintiffs; and (c) on October 29, 2001, the Defendant imposed KRW 204,109,50 on the Plaintiff Company and KRW 95,291,000 on the Plaintiff Company (hereinafter “instant disposition”) respectively as gift tax on the instant shares 1,201.

F. On August 3, 2009, the Plaintiffs were dissatisfied with the request for adjudication on August 3, 2009, but the Tax Tribunal dismissed the said request by the Plaintiffs on November 3, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5, 6, 9, Eul evidence Nos. 1 and 16 (including branch numbers, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) Main argument

In around 1985, the instant company: (a) started a business and operated the largestCC and the largest DD type; (b) decided to sell its shares for the elderly reason; and (c) Plaintiff Ora acquired the instant one shares; and (d) Plaintiff Ora acquired the instant one shares, pursuant to Article 830(1) of the Civil Act, the instant one shares are presumed to be the unique property of Plaintiff Ora pursuant to the provision of Article 830(1) of the Civil Act. In other words, Plaintiff Ora constitutes a donation of the acquisition fund of the said shares from the largest D, not the instant one shares under title trust.

Plaintiff AB had worked in the instant company from 1998 to ever, and acquired the instant two shares at a low price from the highestCC as a contribution to the development of the company. Therefore, the Plaintiff AB was not nominal trust from DoD.

In addition, the purpose of tax evasion is not recognized.

(2) Preliminary assertion

Even if the plaintiffs received the shares of this case 1, 2, 1, 3, 50 billion won per share as stated in the evidence No. 1 (Agreement) and 187,500 billion won per share, the gift value of the shares of this case shall be recognized as 6,400 won per share (120 million won, 7187,500 shares), and the case of plaintiff 2 shall be applied mutatis mutandis to 3,00 won per share. Since it is unfair for the defendant to take a supplementary method of assessment in calculating the value of the shares of this case 1, 2, 3,00 won, 1,000 won per share, 2,00 won per share, 3,00 won per share, 1,000 won per share, 2,00 won per share, 3,00 won per share, 1,000 won per share, 4,000 won per share, 2,000 won per share, 3,00 won per share,

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On August 20, 2001, Plaintiff OA agreed to acquire 187,500 shares of the instant company from the largestCC jointly with the said largestD on August 20, 201, with the payment of KRW 200 million to the largestCC up to the end of August 2001, KRW 100 million up to the end of December of the same year, and KRW 200 million up to the end of June 2002. The Plaintiff OA drafted a written agreement that reflects the real estate located in the former ○○○○ Military, ○○○○○, and transfers the real estate to the former ○○○○○○, which shall be borne by the largestCC.

(2) MaximumD completed each registration of transfer of ownership with a total of 21,668.27 square meters of land located in the ○○○○○○○○○-gun, prior to ownership, ○○○○○-gun, ○○○○○, 524-10 square meters, including land, on several days, including September 25, 2001. The maximum amount of KRW 10 million on October 29, 2001, and KRW 150 million on November 1, 2004, were paid to MaximumCC, respectively. Meanwhile, there is no statement that Plaintiff AA paid money, etc. to MaximumCC as the price for the acquisition of the instant one stock.

(3) At the time of the tax investigation on March 31, 2006, Plaintiff JungB called “○○○○○○○○○-dong, 228-6 land and buildings, which are owned by DoD, deposited KRW 320,000,00,00 in the head of the Do of the largestCC, by obtaining a loan of KRW 320,000,000,000 from ○○○○○○○-dong, 228-6 land and buildings as collateral,” but the above 320,000,000,000 won borrowed from ○○○○-dong, as above, was transferred to the regular deposit account of the mutual savings bank on June 29, 2002, but the said amount was not paid to the largestCC, and there was no record that Plaintiff JungB paid money, etc. to the largestCC as the price for the transfer of

(4) On the other hand, E did not have any property that is equivalent to 75,000 shares of national taxes as delinquent taxpayers at the time of acquiring the 3 shares of this case.

(5) In addition to October 24, 2006, at the time of the investigation, the Defendant requested the MaximumCC to submit all documents related to the transfer of the instant shares on several occasions, but the MaximumCC did not comply with this request. The Park J, which was the person in charge of accounting at the time of the instant company, stated that the pertinent tax investigation did not keep the original basic books on the assets and liabilities of the pertinent financial statements at the time of the instant tax investigation. Accordingly, even if the Defendant’s request for the submission of materials more than once, the original basic books at the time of the instant disposition was not submitted at all.

(6) Accordingly, on October 29, 2001, the transfer date of the instant 1,200 shares, the Defendant, using a supplementary assessment method under the Inheritance Tax and Gift Tax Act, on the ground that there is no data that can assess the market price of the instant company’s shares as of the base date as of the base date, calculated as 4,675 won per share (net value of profit and loss) based on the weighted average amount of net profit and loss during the latest three years, and calculated as 6,081,720,184 won per share (net asset value) calculated by dividing as 750,000 shares, the total number of outstanding shares, by 30% per share (net asset value) by the net asset value of 8,109 won per share, the net asset value of which is higher than the net profit and loss, as of the base date, and assessed as 10,542 won per share to the Plaintiffs by applying the premium rate of 30% per share.

[Ground of recognition] Each description of Gap evidence Nos. 1, 2, 3, 4, Eul evidence Nos. 2, 3, 6, 7, 8, 9, 11, 13, 14, 16, and the purport of the whole pleadings

D. Determination

(1) Judgment on the main argument

(A) Determination on whether a title trust is held

According to the above evidence and evidence as well as evidence Eul evidence No. 10, the MF stated that it paid the acquisition price of shares with the fund, credit safe loan, etc. which the plaintiff Gap had been in common with the former land, but unlike this, the plaintiff Gap did not pay the MaximumCC the acquisition price of shares of this case, and the plaintiff JungB appears to have not paid the acquisition price of shares of this case to the MaximumCC, and eventually, it appears that MF would have paid the acquisition price of shares of this case on behalf of the plaintiffs such as real estate, cash, etc., and EE is also deemed to have received 75,000 shares from the MaximumCC. The plaintiff Gap did not declare and pay gift tax on the acquisition price of shares of this case, the plaintiff Jung also failed to vindicate to vindicate the above payment of the acquisition price of shares of this case, and it is reasonable to view that the plaintiffs were not entitled to exercise the rights of the plaintiffs and the right to purchase shares of this case as the shareholder and the right to purchase the shares of this case.

(B) Determination as to the purpose of tax avoidance

The legislative purport of Article 41-2(1) of the Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle with the purport of effectively preventing the act of tax avoidance using the title trust system and realizing the tax justice. Thus, the proviso of the same Article can be applied only where the purpose of tax avoidance is not included in the purpose of the title trust. In this case, the burden of proving that there was no purpose of tax avoidance can be proved by proving that there was a purpose other than the purpose of tax avoidance. However, the nominal owner who bears the burden of proof has an obvious purpose irrelevant to the tax avoidance to the extent that it is recognized that there was no purpose of tax avoidance in the title trust, and the fact that there was no tax avoidance at the time of the title trust or in the future, it has to be proved that there was no doubt that there was no tax avoidance at the time of the title trust (see, e.g., Supreme Court Decision 2004Du1200, Sept. 22, 2006). 200, the Plaintiffs’ domestic income tax avoidance and its total amount of 1.

(2) Judgment on the conjunctive assertion

(A) Determination as to Section (1)

In the case of unlisted stocks not listed on the Korea Stock Exchange, if there is an example of the transaction that seems to properly reflect the objective exchange value, such price shall be deemed the market price. However, if there is no such example or it is difficult to calculate the market price in any other way, the value thereof shall be assessed in accordance with the complementary evaluation methods under the Act. Here, the market price refers to the objective exchange price formed through normal transaction in principle, and there is a reason to view that the transaction price falls under the market price at the time of donation, from an objective perspective, that the transaction price properly reflects the general and normal exchange value (see, e.g., Supreme Court Decision 9Du2505, Feb. 11, 200).

In light of the following facts: (a) the Plaintiffs, the assignee of the instant 1,2 shares, were the wife of the largest number of persons, who are related parties to the instant 1,300 won, and there is no evidence to acknowledge that the total amount of KRW 1,200 million acquired under the instant agreement was paid to the largest number of persons, and (b) the Plaintiff JeongB acquired KRW 9,300 per share of the instant 2 shares at the time of the tax investigation (Evidence 11); (c) the largestCC decided on March 4, 200 to transfer the instant shares to the head of Sungnam District Tax Office for KRW 9,300 per share and paid capital gains tax, the Plaintiff’s assertion that the instant shares were transferred to KRW 9,300 per share, was formed by the general and normal transaction between unspecified persons, and thus, it is difficult to view the market price as reflected in the ordinary exchange value. Ultimately, the Plaintiffs’ assertion that the instant shares constituted the market price at the time of transfer is unlawful and reasonable.

(b) Judgment as to Section B;

1) Provisions of the statute

Article 60 (1) of the Inheritance Tax and Gift Tax Act provides that "the value of property on which gift tax is levied under this Act shall be the market price as of the date of donation (hereinafter referred to as the "base date for appraisal"), and Article 60 (3) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "in case where it is difficult to compute the market price in the application of paragraph (1), the appraised value in accordance with the methods provided for in Articles 61 through 65 in consideration of the type, size, transaction circumstances, etc. of the relevant property shall be determined" and "in case where it is difficult to compute the market price, the value according to the so-called supplementary valuation method" shall be deemed to be "market price". Article 63 (1) 1 (c) of the Inheritance Tax and Gift Tax Act provides that "the value of stocks and equity shares not listed on the Korea Stock Exchange shall be appraised by the methods provided for in the Presidential Decree in consideration of the assets and earnings of the relevant corporation," and Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the net value of the relevant corporation shall be calculated by dividing average net asset value per stock value per share" as "6".

On the other hand, the burden of proving the net asset value is, in principle, a tax authority. However, in calculating the net asset value of the corporation as of the date of transfer, exceptional circumstances such as the assets of the corporation are different from the balance sheet or the assets of the corporation are disputed (see Supreme Court Decision 2002Du12458 delivered on May 13, 2003).

2) Determination

According to the list of 10, 11, and 12 of the plaintiffs submitted, since the cumulative sales of the company of this case were 12,716,65,462 won from January 201 to October of the same year, cumulative sales amount was 14,675,104,923 won until December of the same year, and the cumulative sales amount was 19,329,146,37 won and approximately 1.6 billion won were 1.6 billion won were 1.6 billion won and 4.6 billion won were 1 billion won and 20 billion won were 5,915,804,974, 2015, 207, 2085, 207, 207, 305, 207, etc. were 10 billion won and 20 billion won were grounded in the above statement of the plaintiffs' audit report on each of the financial statements.

In addition, according to the evidence evidence No. 14, the court appraiser ParkF calculated the profits and losses for the limited period from the sales amount from January to October 10, 2001 to the company of this case as -3,120,406,538 won. However, the court appraiser relied on the materials and statements submitted by the plaintiffs, and it has not been explained for a long time, and there is a difference in the sales amount not clearly explained, and it is difficult to conclude that there is no other materials except the materials submitted by the plaintiffs, it is difficult to accept the above appraisal result as it is. Accordingly, the plaintiffs' assertion that the net asset value per share is 3,948 won is also without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.