Seoul Administrative Court 2009Guu1713 ( December 04, 2009)

If shares are transferred together with the right of management, it shall not be deemed the market price, and if new shares are acquired through capital increase with shares allocated by a third party, it shall not be deemed a separate title trust

It is difficult to view that there was no tax avoidance purpose in stock title trust, and where stocks are transferred with management rights, the transaction price cannot be deemed as the market price reflecting the objective exchange value when only stocks are transferred, and where new stocks are acquired with capital increase issued by a third party, it cannot be deemed as a separate title trust merely because it is merely a modified object

2010Nu1660 Revocation of Disposition of Imposing gift tax

- Appellants

GoA et al. and four others

○ Head of Tax Office and four others

Seoul Administrative Court Decision 2009Guhap1713 Decided December 4, 2009

oly 26, 2010

December 9, 2010

1. The appeal by the director of the Seocho Tax Office shall be dismissed;

2. Of the judgment of the court of first instance, the parts regarding plaintiffs GoA, JB, ParkCC, and newD are modified as follows:

A. The head of Gangnam-gu Tax Office’s disposition of gift tax on January 18, 2008 by the head of Gangnam-gu Tax Office on Plaintiff JinB against Plaintiff JinB, the head of Sungnam Tax Office’s disposition on Plaintiff Jinnam Tax Office’s Plaintiff Ginnam Tax Office, and the head of Songnam Tax Office’s disposition on the imposition of gift tax on Plaintiff JinB, the part exceeding each of the amounts indicated in the justifiable tax column is revoked.

B. All of the remaining claims of the Plaintiff GoA, JB, ParkCC, and NewD are dismissed.

3. The plaintiff Lee Jae-D's appeal is dismissed.

4. 10% of the total litigation costs arising between the plaintiffs GoA, JBB, ParkCC, NewD and the defendant Gangnam-Namy Tax Office, Gannam Tax Office, Gannam Tax Office, Sungnam Tax Office, and Song District Tax Office, shall be borne by the above plaintiffs, and the rest of the defendants shall be borne by the above defendants, and the appeal costs between the plaintiff Jeonnam Tax Office and the defendant Seonam Tax Office shall be

1. Purport of claim

The imposition of gift tax on January 18, 2008, listed in the attached Table 1 list against the Plaintiffs, shall be revoked.

2. Purport of appeal

A. Plaintiffs: The judgment of the first instance court is modified as stated in the purport of the claim.

B. Defendants: The part of the judgment of the court of first instance against the Defendants shall be revoked, and all of the plaintiffs' claims against the revocation shall be dismissed.

1. Details of the disposition;

A. The director of the Seoul Regional Tax Office confirmed on January 11, 2006 that the 0E, the chairperson of △ Group, acquired shares as shown in Table 1 in the name of ○○ Film Co., Ltd. (hereinafter referred to as “○○ Film”) on December 11, 2005 in the name of ○○ Film Co., Ltd. (hereinafter referred to as “the above plaintiffs”), and the 00 Film Co., Ltd. (hereinafter referred to as “the 1 shares of ○○ Film”) in the name of ○○ Film Co., Ltd. (hereinafter referred to as “the 1 shares of this case”). Around that time, including the 1 shares of this case, the 00 Film Co., Ltd. (hereinafter referred to as “the 1 shares of this case”). The details of changes in ○○ Film Co., Ltd. (hereinafter referred to as “the 1 shares”).

B. The director of the Seoul Regional Tax Office, as indicated in Table 3 on February 13, 2006, transferred the first stock to 78,815 won per share, and confirmed the fact that the Plaintiffs, as indicated in Table 3, transferred to ○○ Film Co., Ltd. (hereinafter referred to as ○○○ Film Co., Ltd.) the first stock to ○○ Entertainment Co., Ltd. (hereinafter referred to as ○○○○○○ Co., Ltd.) and acquired KRW 2,070 per share, as indicated in Table 4, by participating in the third party allotment method of ○○ Entertainment Co., Ltd. (hereinafter referred to as ○○ Co., Ltd.).

C. On January 5, 2006, the director of the Seoul Regional Tax Office: (a) on January 5, 2006, he received 487,810 shares in the name of the new G, and 731,715 shares in the name of the new G, and sold 200,00 shares in his own account; and (b) on January 5, 2006, he held 60,648 shares in the name of the new G, and (c) on January 1, 200, he purchased 77,000 shares in the Y; (b) on January 5, 2006, he acquired 536,591 shares in the name of the new H; (b) acquired 731,731,713 shares in the name of the new G; and (c) confirmed that the Plaintiffs held 30,000 shares in the name of the new G, 30,000 shares in the name of the new G.

D. The director of the Seoul Regional Tax Office: (a) held the title trust of the Plaintiff 1/2 shares of this case with the Plaintiff 1/2 shares for the purpose of tax avoidance; (b) held the Plaintiff 1/2 shares for the purpose of tax avoidance; (c) held the Plaintiff 1/2 shares for the purpose of tax avoidance to the Plaintiffs; and (d) notified the Defendants of the determination and notification of gift tax to the Plaintiffs by applying the provision on constructive gift of title trust property under Article 15-2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007; hereinafter the “Inheritance Tax and Gift Tax Act”); and accordingly, the Defendants accordingly notified the Plaintiffs of the determination and notification of gift tax by applying the provision on constructive gift of title trust property under Article 15-2 of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 207).

E. The Plaintiffs were dissatisfied with each of the instant dispositions and filed a tax judgment on April 13, 2008, but were dismissed on December 26, 2008.

[Reasons for Recognition] The facts without dispute, Gap evidence 1, 2-1 to 4, Gap evidence 3-1, 2-1 to 5, Gap evidence 4-1 to 5, Gap evidence 11-1, 2, 3, Gap evidence 12 through 16, Gap evidence 18, Eul evidence 18, Eul evidence 1, 2 and 3, Eul evidence 4-1 through 4, Eul evidence 5, 6 and 7-1, 2, Eul evidence 8, 9, 10, 18, and 19, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the appeal by the director of the Seocho Tax Office is lawful or not

An appeal can only be filed against himself/herself, and whether the judgment is disadvantageous to an appellant shall be determined at the time of the filing of the appeal on the basis of the main text of the judgment. Therefore, there is no benefit to bring an appeal in the first instance court (see, e.g., Supreme Court Decision 83Da515, Oct. 25, 1983). In this case, it is clear that the facts of filing an appeal even after the judgment in favor of the Plaintiff was rendered in full favor of the Plaintiff Jeon-D are recorded, and there is no special circumstance to make the appeal lawful. Thus, there is no benefit to file an appeal by the head of the Seocho District Tax Office, which is unlawful.

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

A. The plaintiffs' assertion

(1) As to the first shares of this case

(A) Whether the purpose of tax avoidance exists

In taking over ○ film, ○○ film acquired 90% or more of the total number of outstanding shares of ○ film under the Commercial Act, but it was practically impossible for some shareholders of ○ film and affiliated companies of ○ film to acquire 00% or more of 00% of 00 or more of 90% of 00 or more of 000 shares of 00 or more by affiliated companies of 00,000 affiliated companies of ○ film. Furthermore, ○○ film or affiliated companies intended to purchase shares in the name of a third party in order to prevent shareholders of 00 or affiliated companies from being aware of the merger or from opposing the merger. Under the above circumstances, ○E and 00% of the shares of 00 or more of 00 films were leased under the name of the Plaintiffs in order to secure more than 90% of the shares of 00%, and this is the purpose of title trust for 1 shares of this case.

In addition, in the title trust of the first stock of this case, there was no purpose of evading taxes, such as 00 film secondary tax liability, Constructive Acquisition Tax by oligopolistic stockholders, and dividend income tax.

Therefore, it is unlawful to impose gift tax by deeming the title trust of the shares No. 1 as a donation.

(B) The market price of the first stock

The title II acquired ○ film shares of ○○ film through a normal transaction, and entrusted the sale to ○ KK manager to the extent that it guarantees 5,000 won or more per share of investment profits. According to such entrustment, the first shares of this case were sold to 0,000 won in a normal transaction under the name of the Plaintiffs per the instant case, and thus, the above price is the market price reasonably determined. On the other hand, the sale and purchase of ○ film shares of ○○ film of 78,815 won per share is not subject to profit margin, and the sale and purchase of ○ film shares of ○ film of ○ film of ○○ to the extent that the purchase price conforms to the purchase price between thisJ, etc., and thus, there is no credibility of the actual transaction. Moreover, since the sale and purchase price of ○ film shares of ○ film of 1,815 won per share is more than the market price at an objective transaction price formed in the transaction of △△, a transaction value accompanied by an exchange of management rights, etc.

Therefore, it is unlawful that the Defendants calculated the value of the 1st share in this case as KRW 78,815.

(2) As to the second shares of this case

The 2nd shares of this case are allocated in return for the acquisition of the 1st shares in the simplified merger procedure between ○ Film and △○ Entertainment, and are deemed as the 1st shares and the 1st shares of this case. Thus, it cannot be deemed as a title trust separate from the 1st shares already held in title trust.

Even if the title trust was held separately from the shares No. 1 of this case, the shares No. 2 of this case had no choice but to be registered in the name of the plaintiffs under the name of the title holder of the shares No. 1 of this case in the process of the merger between △ Entertainment and ○ Film. In the title trust of the shares No. 2 of this case, there was no intention to avoid taxes, such as the title trust of the shares No. 2 of this case, including the secondary tax liability of △ Entertainment, the deemed acquisition tax

Therefore, it is unlawful to impose gift tax by deeming the title trust of the shares 2 as a donation.

(3) As to the third shares of this case

□□엔터는 주식회사 ♧♧트에 대한 부채를 변제하기 위하여 2005. 11. 1. 유상증자를 하기로 했는데, □□그룹이나 백EE이 위 유상증자에 참여하게 되면 □□엔터의 이마지나 주가에 악영향을 마칠 수 있었기 때문에 자금조달의 필요를 충족시키면서 이미지나 주기에도 좋은 영향을 미칠 수 있는 제3자 배정 방식의 유상증자를 하기로 하였다. 백EE은 동향회를 통하여 친분관계를 유지하여 온 신GG 등에게 위 유상증자에 참여해 줄 것을 부탁하면서 신주 인수대금의 50% 상당을 대여하되 주가가 하락하여 신GG 등에게 손실이 생기는 경우 위 대여금에서 공제하여도 좋다는 취지의 제안을 하였다. 선GG 등은 약 2개월 간 위와 같이 인수한 신주 중 일부를 처분하여 수익을 얻고, 나머지 주식을 이 사건 ㉯ 원고들에게 관리하게 한 다음 그 처분 수익으로 백EE에 대한 차용금 채무를 변제하고, 나머지 수익으로 장학사업 등 사회사업에 사용하기로 하여 이 사건 제3주식을 이 사건 ㉯ 원고들의 계좌에 입고하여 명의신탁한 것이다. 따라서 이 사건 제3주식의 소유권은 신GG 등에게 있고, 백EE은 신GG 등에 대한 대여금 채권이 있을 뿐이다. 이것이 이 사건 제3 주식에 관한 명의신탁의 목적이다.

In addition, in the title trust of the third stock of this case, there was no intention to avoid taxes, such as the secondary tax liability of △△△, deemed acquisition tax by oligopolistic stockholders, global income tax including dividend income, transfer income tax, etc.

Therefore, it is unlawful to impose gift tax by deeming the title trust of the third stock as a donation.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the first shares of this case

(A) Whether the purpose of taxation is to taxize

The provision on constructive gift of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act recognizes an exception to the substance over form principle in order to realize tax justice by effectively preventing the act of tax avoidance using the title trust system. As such, where the purpose of tax avoidance is not entirely included in the purpose of title trust, the proviso of the same Article can be applied. In this case, the burden of proving that the purpose of tax avoidance was not included in the purpose of tax avoidance exists to the nominal owner who asserts it, and therefore, the nominal owner who bears the burden of proving the burden of proof has an obvious purpose of tax avoidance which is irrelevant to the tax avoidance to the extent that it is recognized that there was no objective 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 has to be proved to the extent that there is no doubt in the ordinary person by objective and conclusive evidence (see Supreme Court Decision

According to the evidence evidence Nos. 4-1 to 4, No. 17-2, No. 17-2, No. 17-2, and No. 17-20, each of the following facts: (i) the sale price of the shares of this case was transferred to the personal account of J II; (ii) the sale price of the shares of this case was confirmed to have led the sale of the shares of this case to the ○○○ film, the representative director of the JJ or the executive director of the GK, who had performed an investment distribution-related business with the JJ, respectively; and (iii) the sale of the shares of this case to the ○○○○○-2, the dissenting shareholders of this case, who did not own the shares of this case under the name of the ○○○○-5, and the majority shareholders of this case, could not be seen to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to purchase the shares of this case by the plaintiffs 10,500.

In addition, the title trust of the 1st share of this case was planned to be held under the name of the plaintiffs after 00 EE and 00 F sold the above shares in the process of a merger between ○ Film and Marien. ① 00 E and 00 F are relatives under Article 20 of the Enforcement Decree of the Framework Act on National Taxes (amended by Act No. 8144 of December 30, 2006) who are liable to pay capital gains tax pursuant to Article 94 (1) 3 of the Income Tax Act (amended by Act No. 8144 of December 30, 2006. 3% or more of the total number of issued shares, or the total market value of the shares is 10 billion won or more). 2. 30% of the total shares of this case were added to the shares of 1,59,144 shares, and 300% of the total shares of this case were owned by 350% of the total shares of this case. 329% of title trust shares of this case. 305% of this case.

In full view of the overall purport of the arguments in Gap evidence Nos. 10 and Eul evidence Nos. 18 and the purport of the argument as a whole, it is anticipated that the share price increase was anticipated by the merger of the ○ film to which the deceased actors belong, and in fact, after the merger, it is recognized that the share price of the △ Entertainment was increased. In such a situation, it is anticipated that a considerable amount of capital gains would occur when selling the △ Entertainment shares, and that 0E and 0F would have been able to avoid capital gains tax by entrusting the shares of the △ Entertainment under the name of the plaintiffs in the name of the plaintiffs. As seen earlier, considering the fact that the title trust of the 1st share was made in the preliminary stage for the title trust to the plaintiffs under the name of the plaintiffs, it is difficult to deem that there was no tax avoidance purpose in the title trust of the 1st share of this case.

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

(B) The market price of the first stock

According to Article 60(1) of the Inheritance Tax and Gift Tax Act, the value of an asset on which a gift tax is levied is based on the market price as of the date of donation, and its “market price” refers to an objective exchange price formed through a normal transaction as a matter of principle, and in order to be deemed the market price at the time of donation, the transaction price should be objectively considered to reflect the general and normal exchange value in a reasonable way. If shares issued by a company are transferred with a thickness of management and power, the transaction price cannot be deemed as the market price that reflects the objective exchange value in cases where only shares are transferred (see, e.g., Supreme Court Decision 2001Du9394, Jun. 13,

The transaction amount which can be seen as the market price of the 1st stock of this case is 78,815 won, which is the transaction amount sold by the SongJ to Han L, and 5,000 won, which is the transaction value of the 1st stock of this case sold by the Y to Y, 000 won, which is the transaction value of the 1st stock of this case sold to Y by the Y and Y (the title holder shall be 10,000 won, and 78,815 won, which is the transaction value sold to Y by the YS Co., Ltd. (hereinafter hereinafter referred to as the "YY") on January 2, 2006 (the 5,000 won, which is the transaction value sold to PP of November 4, 2005, and PR, to Y, shall not be examined for a long time compared to the sale of 1 stock of this case to 10,00 won on December 11, 2006.

First, in full view of whether 78,815 won, which is the transaction value sold by △△△ on January 2, 2006, reflects the objective exchange value of the shares of this case, and the purport of Gap evidence No. 21 as of January 2, 2006 as of January 2, 2006, △△○’s representative director is this N, Han L can recognize the fact that he is the mother of this N, and Han L can purchase ○○ film 10,000 won per 78,815 won from △△△○ on January 16, 2006, it was recognized as above, which reflects the above price of the shares sold to ○○○○○, a special relationship with the management right of this case, and it cannot be viewed that ○○,000 shares were transferred under the name of ○○, and it cannot be viewed that ○○,000 shares were transferred under the name of ○○,000 shares.

Then, considering the following facts: 0,00 won, which is 10,00 won at the time of this case’s sale of 00 U.S. 1 and 00 U.S. 1 and 18 and 20 U.S. 10 U.M. 2 were 0 U.S. 0 U.M. 10 U.M. 10 U.M. 6 U.M. 10 U.M. 0 U.M. 6 U.M. 10 U.M. 6 U.M. 0 U.M. 10 U.M. 6 U.M. 00 U.M. 10 U.M. 100 U.M. 200.M. 1 U.M. 100 U.M. 6 U.M. 100 U.M. 200 U.M. 1 U.M. 200.M. 200.

(C) Sub-determination

As seen above, when considering the market price of shares No. 1 in the instant case as KRW 10,00 and the gift tax arising from the title trust of shares No. 1 in the same manner as indicated in the separate sheet No. 2, the amount of the justifiable tax amount indicated in the same list corresponding to the shares No. 1 in the separate sheet No. 1, the portion exceeding the above amount as to each of the shares No. 1 in the instant disposition certificates is unlawful.

(2) As to the second shares of this case

According to the above facts, the sale and purchase of the shares No. 1 and the allocation to the plaintiffs of the shares No. 2 of this case to the plaintiffs of this case were formally separate transactions. However, in full view of the overall purport of pleadings as to the statement No. 4-1 through No. 4, No. 11-1, No. 2, No. 3, and No. 12 of this case, the agreement was made to pay the full amount of the purchase price as the price of shares No. 2 of this case in the status where the allotment of shares No. 1 was planned at the time of the sale and purchase of shares of this case, and accordingly, the transferor, whose purchase price has already been deposited, deposited with the transferee of the shares of this case, deposited the deposit passbook No. 2 of this case as the price for the acquisition of shares of this case, and then the actual number of funds was not achieved between the plaintiffs of this case and the ○○ Center. The above transaction can be acknowledged as being delivered to each company by issuing the new shares to each of the shareholders of this case without a merger subsidy.

Therefore, the issuance of new shares to the third party, which may be made to the shareholders of ○ Film pursuant to the above method, shall be an exchange of ○ film stocks held by each shareholder with ○ Film with ○○○’s stocks in a uniform manner without any need to conclude an individual new shares acquisition contract, unlike the typical subscription for new shares after concluding the new shares acquisition contract with the company and paying the subscription price for new shares, and in the process, the purchase price of shares is not actually received. In this case, it is difficult to view that there was a title trust agreement on the 2 shares of this case separately from the 1 shares of this case, which are the existing shares under title trust with the plaintiffs in this case. In other words, since the 2 shares of this case are not merely the modified shares of 1 shares, it is difficult to view that the allotment of 2 shares to the plaintiffs of this case is a separate title trust, and it is difficult to view that there was a possibility of a new tax evasion out of the initial acquisition of the 2 shares of this case, other than the potential shares under title trust, due to the possibility of tax evasion.

(3) As to the third shares of this case

In full view of the overall purport of the pleadings as to the witness testimony of ES evidence No. 4-1 to 4, Eul evidence No. 10, Eul evidence No. 12-11, Eul evidence No. 12-15, Eul evidence No. 18 and 19, and Gap evidence No. 19, 000 can be acknowledged that 50% of the acquisition price of new shares acquired in its own funds in the subscription price for new shares by participating in the Austria’s capital increase, etc. on November 1, 2005. Meanwhile, in light of the following circumstances acknowledged by the above evidence, it is reasonable to view that the 3G shares out of the 3G shares of this case were transferred to the Plaintiff, which is the title trust account of Y, and that 50% of new shares acquired in the name of 3G shares of this case, including new shares acquired in the name of the 3G shares at the time of investigation, were not included in the new title trust agreement, and that the 5G shares were not disposed of by new shares.

In addition, as seen in the above part as to the shares 1 of this case, 0E shall be deemed to have been able to avoid the transfer income tax by title trust with the shares 3 of this case. Therefore, it is difficult to deem that there was no tax avoidance purpose.

However, according to Articles 47(2) and 58(1) of the Inheritance Tax and Gift Tax Act, in cases where the total amount of donated property received from the same person is at least 10,000 won within 10 years prior to the pertinent donation date, gift tax shall be imposed by adding up the value of donated property. However, in such cases, the amount calculated by applying the provisions of Article 58 of the said Act, less the tax amount paid for the color of the previous donated property, shall be imposed. As such, since the gift tax on the title trust of the third-party shares of this case against the Plaintiff Ga of this case on the title trust of the third-party shares of this case shall be KRW 105,00,000 ( KRW 10,500, KRW x10,000) converted from the value of the first-party shares of this case to the amount of tax payable for the previous donated property, the final gift tax amount shall be calculated as shown in the attached Table 2 list by deducting the amount of gift tax to the amount of gift tax payable for the previous donated shares of this case.

4. Conclusion

The appeal by the chief of the Seocho District Tax Office shall be dismissed in an unlawful manner. The appeal by the plaintiff GoA, JB, ParkB, ParkCC, and newD shall be accepted within the scope of each recognition. The remaining claims by the above plaintiffs and the claims by the plaintiff Jeon SooD are dismissed for all reasons. Since the part of the judgment of the court of first instance concerning plaintiffs GoA, JB, ParkB, ParkCC, and newD among the judgment of the court of first instance is partially unfair, the above judgment of the court of first instance shall be modified as above, since the above plaintiffs' appeal is accepted and the appeal by the defendants is dismissed, and the part concerning the plaintiff Jeon SooD is just as it is concluded in the judgment of the court of first instance. Therefore, the above plaintiff's appeal by the court of first instance is dismissed for lack of reason.