early 2010west2028 ( December 29, 2010)

No case where the mortgagee and the nominal mortgagee are different shall be deemed to be a title trust.

Since the gift tax imposed on title trust is recognized as an exception to the substance over form principle, its application should be strictly interpreted, and it cannot be interpreted that the case where the actual mortgagee and the nominal mortgagee are different from the actual mortgagee is included in the case where the actual owner and the nominal owner are different.

2011Guhap7786 Revocation of Disposition of Imposition of Gift Tax

XX

O Head of tax office

May 27, 2011

August 26, 2011

1. The Defendant’s disposition imposing gift tax amounting to KRW 111,434,340 on the Plaintiff on April 14, 2010 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. The director of the Seoul Regional Tax Office, from August 25, 2009 to December 1, 2009, entered into an integrated corporate tax investigation with respect to Lone Star M Co., Ltd. (former trade name is Co., Ltd., OE; hereinafter the same shall apply), which is a KOSDAQ-listed corporation, and received new shares equivalent to 477,600 shares per share of 4,160 won from 12.05 to 4,00 shares issued by the △△△D Co.,, Ltd. (hereinafter referred to as the △△△△△△), with a view to raising funds for participating in the above capital increase, the △△△△D Co., Ltd. (hereinafter referred to as the △△△△), who is a major shareholder of the XX CostM, received 00 won from △△, 2006, 3008, 409, 4000 investors or 400 investors' shares issued new shares under the name of △△, etc.

B. Accordingly, the director of the Seoul Regional Tax Office, while participating in the above capital increase with new shares, deemed that the above new shares were trusted to the Plaintiff, etc. by being allocated 405,600 won under the name of the third party, such as the Plaintiff, and applied Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), calculated the amount calculated by multiplying 16,259 won per share of the shares M, which is the transfer date, by the number of shares allocated to the Plaintiff, as the value of donated property (in case of the Plaintiff, the value of donated property is 390,216,000 won (i.e., the value of donated property is 16,259, X24,000 won) and notified the Defendant, etc., the disposition authority, as the penalty tax (including penalty tax) of the Plaintiff on April 14, 201010

C. On May 27, 2010, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal dismissed the said claim on December 29, 2010.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

3. As to the Plaintiff’s transfer of shares to △△ in accordance with the provisions of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, the Defendant: (a) the Plaintiff and △△△△, without any ground, received the instant shares allocated by △△ pursuant to the title trust agreement concluded between the Plaintiff and △△△; and (b) the Plaintiff imposed gift tax on the Plaintiff by applying the provisions of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Around December 2005, 2005, the △△△△, a major shareholder of XX CostM, entered into an agreement with the credit service company to raise funds to participate in the above capital increase with the △△△ on December 12, 2005, on the condition that △△△ will pay an amount equivalent to 4% of the investment funds raised by △△△ as service fees to △△ (hereinafter referred to as the “Agreement on the Financing”) in addition to the above interest, on the condition that △△ would pay an amount equivalent to 3% of the investment funds raised by △△△△ in addition to the above interest, on the condition that △△△ would pay an amount equivalent to 4% of the investment funds raised by △△△△ in addition to the above interest, the major contents of the agreement on the financing (Evidence 2) are as follows.

2) On December 8, 2005, △△△ concluded an investment agreement (hereinafter “instant investment agreement”) with the content of receiving new subscription money on the condition that 11% cashier’s checks equivalent to 20% of the investment amount are issued to investors in order to secure the investors’ principal and interest of the investment, in accordance with the instant financing agreement, the △△ (her husband of the Plaintiff), etc., are recruited from 11 investors, including △B (her husband of the Plaintiff), and the amount equivalent to 4% of the investment amount is paid as interest, and the major contents of the agreement are as follows.

3) The 11 investors, including HaB, entered into the instant investment agreement with △△, and raised a total of KRW 1,687,296,000 with the subscription fund for new shares of XX CostaM. Pursuant to the instant financing agreement, △△ was issued a cashier’s check equivalent to 7% of the subscription fund for new shares raised from △△△△ for service fees and interest, and 338,000,000,000 won as the collateral, and then issued the said cashier’s check to the investors in an amount equivalent to 4% of the subscription fund raised as interest pursuant to the instant investment agreement, and issued the said cashier’s check to the investors.

4) Meanwhile, △△△ was allocated 405,60 shares out of 477,600 shares out of 477,600 shares with new shares offered in accordance with the instant funding agreement and the investment arrangement to investors or a third party designated by △△△. The specific details are as follows.

5) Following the sales order of △△△ to settle the new shares subscription fund, 11 investors, including NAB, etc., sold 405,600 new shares allocated five times from December 23, 2005 to February 1, 2006 to 7,425,07,078,440 shares, after deducting the remaining sales price of KRW 1,687,296,000 from the investment principal, and returned to △△△△△△△△△△△, after deducting the remaining sales price of KRW 5,737,782,440, and KRW 338,00,000, which were offered as security.

[Ground of recognition] Facts without dispute, Gap 3 through 6 evidence, each entry of Eul 2 through 7, the purport of the whole pleadings

D. Determination

1) In order to establish a deemed donation of title trust for shares pursuant to Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, a transfer of title to the name of the actual owner and the nominal owner should be made in the future under an agreement between the actual owner and the nominal owner on the title trust, i.e., the agreement on the title trust of shares, or communication. Thus, if a transfer to the title holder was made without an agreement on the title trust, the said provision may not be applied (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 2008). In addition, in cases where the title of shares owned by a person without title is transferred to the creditor for the purpose of collateral security for the claim, the said provision does not merely have the formal ownership on the shares for the debtor, but has a security right for its own

2) In light of the above legal principles, comprehensively considering the following circumstances, which can be acknowledged by comprehensively considering the facts acknowledged as seen earlier, the facts leading up to the difference between the actual owner of the instant shares and the nominal owner, the actual disposal of the shares after the acquisition of the shares, the settlement of the price, and the settlement of accounts, etc., as to the instant case, even though △△, the actual owner of the instant shares, and the Plaintiff, who is the nominal owner, are different, △△ cannot be deemed to have held the title trust of the instant shares, and there is no evidence to acknowledge otherwise, and rather, it is reasonable to deem that △△, one of the financial investors, was allocated the instant shares in the name of the Plaintiff, who is the wife, for the purpose of transfer for security in order to secure the return of the principal and interest of his investment. Accordingly, the provision

A) The instant financing agreement between △△ and △△, stating that, until △△ was returned the principal and interest of the investment funds raised by △△△, the △△△△’s cashier’s checks issued and kept (Articles 2(5) and 5(2)), the new stocks to be acquired through participation in the offering of new stocks are also allocated in the name of △△△, and the preemptive rights derived from keeping the new stocks as security are held by △△△△ (Article 6(11)). In the event the total market price of new stocks allocated and the cashier’s checks offered as security does not exceed 150% of the investment funds raised by △△△△△△△△△△△△△△, if the total market price of the new stocks and the cashier’s checks offered as security does not provide additional security, △△△△△△△ has provided additional security and granted △△△△△△△△ with the cashier’s checks so that they can meet the principal and interest of the investment (Article 6(5))).

B) In order to secure investors’ principal and interest in investment, △△ and 11 investors, △△, including △ and △B, have decided to deliver cashier’s checks equivalent to 20% of the investment amount to investors. The instant investment agreement also states that in the event △△ has repaid investors’ full amount of the investment amount, the investors are obliged to return the shares and secured articles (Article 7). Accordingly, △△, upon entering into the instant investment agreement with the investors, △△ granted the same authority as the said security and its replacement for investors, prior to being granted by △△△△ when entering into the instant investment agreement with the investors.

C) In fact, investors, such as BB, etc., are in accordance with the investment agreement of this case from △△.

After receiving the agreed interest rate and investing in and out of KRW 100,000 through KRW 200,000, in the name of the parties or a third party designated by them, they sold the new shares issued by XX CostM and returned the remainder of the sales price after deducting the investment principal from △△ upon the instructions of △△△. In accordance with the instant funding agreement, △△ also collected investors pursuant to the instant funding agreement and received an agreed interest and service fee from △△△△, and the remaining sales price of new shares after deducting the investment principal received from the investors was returned to △△△△△△.

D) At the time, △△ was the representative of △△, who was subject to a tax investigation in relation to the instant case, and △△ was in charge of mediating between △△ and investors. However, the actual ownership of the new shares acquired through the increase in the capital for the instant consideration was at △△, but the investors stated to the effect that, for the purpose of securing the return of the investment amount, they would make payments for the capital increase in their names to distribute new shares, and that some investors would know of the reasons for the payment of the capital increase in the name of others, and KimYdo’s employees, who had been in charge of the practical affairs at the time, kept new shares as a security for the investment amount, and that there was a substantial ownership of the new shares.

E) On the other hand, it does not seem that there was a personal trust relationship to the extent that only the nominal ownership of shares was entrusted between △△△ or △△ and investors, and there is no clear ground to deem that there was an agreement among them to title trust the new shares issued by XX CostaM.

F) Meanwhile, even though shares can be the object of security by establishing a pledge right on shares, the creation of a security right by means of security by transferring the name of shares to a secured party is much more easy in terms of securing and recovering a security right. Therefore, from the standpoint of a secured party, it seems that there is more incentive to establish a security right on shares than establishing a pledge right on shares.

3) Furthermore, even if B was allocated new shares for the purpose of transfer by means of transfer as mentioned above, as the name of the Plaintiff, the title of B ultimately results in title trust with the Plaintiff, and even in the case of title trust with respect to whether the provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act can be applied to the case of title trust with respect to whether the provision on deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act can be applied.

In the case where the actual owner and the nominal owner are different, gift tax is imposed by deeming the value of the property as being donated to the actual owner. Since the legislative intent of the above provision is to effectively prevent tax avoidance by using the title trust system, thereby promoting the realization of tax justice, thereby allowing exceptions to the substance over form principle (see, e.g., Supreme Court Decision 2003Du13649, Dec. 23, 2004). In light of the fact that the application of the above provision should be strictly interpreted, the case where the actual mortgagee and the mortgagee in the name of the nominal owner are different from the actual owner, it cannot be interpreted that the actual owner are included in the “where the nominal owner is different.”

Therefore, even if HB made a title trust to the Plaintiff with the instant shares transferred for security, it is reasonable to view that the gift tax may not be levied on the Plaintiff by applying the provision of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act.

(iv)Indivates

The Defendant’s disposition of this case based on the premise that △△ entrusted the instant shares to the Plaintiff is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.