Seocho 2014west 1948 ( October 13, 2014)

If registered shares are issued, the name, address, etc. of shareholders in the register of shareholders shall be entered and distinguished from acquisition by sale and purchase.

In the event that new shares are allocated through the offering of new shares by a third party, the name and address of each shareholder in the register of shareholders, the class and number of shares held by each shareholder, and the date of acquisition of each shares shall be recorded, which is distinguishable from the acquisition of shares by trading that is not subject to the commercial

Donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2014Guhap67123 Revocation of Disposition of Imposition of Gift Tax

NewA

BB Director of the Tax Office

September 1, 2015

September 18, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The imposition of gift tax of KRW 215,044,470 against the Plaintiff on June 17, 2013 is revoked.

1. Details of the disposition;

A. On April 29, 2009, the Plaintiff participated in the allocation of new shares to a third party by CCC (hereinafter “instant company”) and was allocated 000 shares (390 won per share, total value of 00 won, and hereinafter “instant shares”) by participating in the allocation of new shares to a third party.

B. On June 17, 2013, the Defendant deemed that the Plaintiff received the title trust of the instant shares from DD, and applied Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “Inheritance Tax and Gift Tax Act”) to the Plaintiff (hereinafter “instant provision”).

On March 21, 2014, the Plaintiff filed an appeal with the Tax Tribunal on March 21, 2014, but dismissed on June 13, 2014.

The decision was rendered.

[Ground of Recognition] Unsatisfy, Gap evidence 1, 6 through 10, Eul evidence 1, before pleadings

The purpose of body

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful

A. As to transfer of title

1) The plaintiff's assertion

Inasmuch as the Plaintiff did not enter the Plaintiff’s name on the instant shares in the register of shareholders, and thus, transfer was not made, it cannot be deemed that the instant shares constitute a title trust under Article 45-2 of the Inheritance Tax

2) Determination

In light of the following circumstances, it is reasonable to view that a transfer of title was made in the name of the Plaintiff with respect to the instant shares, in addition to the entire purport of the pleadings as a result of the fact-finding on the National Bank Co., Ltd. (hereinafter “National Bank”) of this Court, as stated in the evidence Nos. 5 through 7 (including serial numbers) and the fact-finding

① The Plaintiff was allocated new shares by participating in capital increase with new shares allocated to a third party, which is a registered shares. When the Plaintiff issued the registered shares as above, the former Commercial Act (Act No. 12591, May 20, 2014)

Pursuant to Article 352(1) of the Commercial Act, the name and address of each shareholder in the register of shareholders, the class and number of shares held by each shareholder, and the date of acquisition of each share shall be stated. This is distinguishable from the acquisition of shares by sale that is not subject to the obligation under the Commercial Act.

② A national bank, a transfer agent of the instant company, shall enter the Plaintiff in the register of shareholders on May 12, 2009 in the name of the Plaintiff from May 4, 2015’s inquiry letter to the fact inquiry letter.

I clarified that it had been.

Third, on May 22, 2015, CCC from April 22, 2009 to May 22, 2015 sent the answer that “I cannot output the register of shareholders because the CCC did not confirm the right.” This means that at the time of the entry of the Plaintiff as a shareholder, the Plaintiff was not entered in the register of shareholders,” rather than that at the time of the instant company’s failure to confirm the right at the time, the entire shareholder as of the date of confirmation of the right.

It seems that the beneficial shareholder list prepared for B cannot be printed out.

B. As to whether the name was stolen

1) The plaintiff's assertion

The plaintiff's securities card and identification card copy of the plaintiff's securities card with the knowledge that the DoD was used after the request of the Gopo-friendly EE, and that it was used after the plaintiff's permission.

There is no fact that the Plaintiff borrowed the name of the company with respect to the shares. The Plaintiff’s illegal use of the name from D.

Therefore, it cannot be viewed as a title trustee of the instant shares.

2) Determination

A) The title trust relationship is not necessarily established by an express contract between the truster and the trustee, but can also be established by implied agreement (see Supreme Court Decision 2000Da49091, Jan. 5, 2001).

B) In light of the following circumstances, it is reasonable to view that the Plaintiff received a title trust of the instant shares from DD at least by implied agreement, in view of each of the evidence and evidence set forth in 2 through 4 as seen earlier and the purport of the entire pleadings.

① Upon request from EE, the Plaintiff issued a copy of the securities card and identification card that can be used in the transaction of the Plaintiff’s shares, and at the time, the said documents were transferred to DD.

Also, he was aware of the fact.

② On April 30, 2007, the Plaintiff opened an account for securities transaction with the said securities card on its own. Considering that the Plaintiff continued to use the said account for securities transaction, the Plaintiff could have sufficiently anticipated that DD will make a stock transaction under the Plaintiff’s name and thereby transfer of shares in the Plaintiff’s name.

③ On April 29, 2009, DD acquired shares using documents issued from FF, GG, and HH, through EE, after being allocated new shares of the instant company, and drafted as of April 25, 2009 a letter of performance statement stating that DD will be responsible for and responsible for all legal responsibilities and its tax payment obligations, as it acquired shares by borrowing the shares in the name of FF, GG, and HH from the EE. In response to the allocation of new shares of the instant company, DD is expressed in the letter of performance statement that DD borrowed its name.

D. As to the Plaintiff’s assertion on donation date

1) The plaintiff's assertion

The provision of this case refers to the date following the end of the year following the year in which the date of donation falls if the property is subject to a change of ownership (hereinafter referred to as "the date of the case").

The provision provides that in the case of shares requiring a transfer of entry, the above date shall be deemed the donation date. EE sold the shares of this case under the Plaintiff’s name to a third party on May 26, 2009 and returned the price to DD. This is the day before the date deemed to be the donation date under the Inheritance Tax and Gift Tax Act.

The title trust contract cannot be deemed to have been terminated and there was a gift under the above provision. Thus, the plaintiff shall be deemed to have been a gift.

No leisure tax may be levied.

2) Determination

We examine whether the provision of this case can be applied to the shares of this case.

A) Comprehensively taking account of the following circumstances revealed by the contents, form, and purport of Article 45-2(1) of the Inheritance Tax and Gift Tax Act and the relevant Acts and subordinate statutes, the instant provision under Article 45-2(1) of the Inheritance Tax and Gift Tax Act is prepared for imposing sanctions on neglecting the entry of a change of holders in the case of stocks which are property requiring a change of holders for a long time, and is thus defined as the date of deemed donation in this case.

① In the event that the amendment of the provision of this case newly established does not enter the change of the title to shares, etc., the act of tax avoidance using the transfer of title is deemed as the title trust, and the major ductist also does not change the title to the person who acquired shares and equity shares for a long time.

(1) In the case of a title trust, the nominal owner shall receive the donation of the shares and equity shares.

to impose gift tax on the person who is deemed to be subject to gift tax, which cannot be deemed to be the original title trust.

The purpose of this study is to consider the donation of the title trust by dealing with the neglect of changing the ownership of shares.

② Article 45-2(2) of the Inheritance Tax and Gift Tax Act also states "where property has been registered, etc. under the name of another person," and "where a transfer has not been made under the name of the actual owner," on a concurrent basis.

B) Since the Plaintiff was recognized as having received a stock title trust from DD, there is no room for applying the instant provision to the instant shares. The Plaintiff’s assertion on a different premise cannot be accepted.

E. Whether the main sentence of Article 31(4) of the Inheritance Tax and Gift Tax Act is applicable

1) The plaintiff's assertion

EE sells the instant shares on May 26, 2009, within three months from the date of acquisition of the instant shares under the Plaintiff’s name, and returned the sales price to DD. Thus, it shall be deemed that there was no donation from the beginning pursuant to the main sentence of Article 31(4) of the Inheritance Tax and Gift Tax Act.

2) Determination

A) In the case of a stock title trust, the property deemed donated under the instant provision is not a purchase price for shares, but a stock itself. The title trustee’s disposal of the title trust property and return the price to the title truster is naturally scheduled in the context of a title trust for tax avoidance purpose.

The title trustee is an act of title trust, and the money equivalent to the disposal price or value of the title trust property is equivalent.

be deemed to be the return of property donated to the person and the gift tax may not be imposed.

If the title trust is held, the title trust for the purpose of tax avoidance is imposed by deeming the title trust to be a donation.

Since the purport of the law that intends to restrain is dismissed, the return of the sale price of the nominal shares is made in title trust.

The term “return of donated property” under Article 31(4) of the Inheritance Tax and Gift Tax Act cannot be deemed as “return of donated property” (Supreme Court).

See Supreme Court Decision 2005Du10200 Decided February 8, 2007

B) The Plaintiff’s assertion does not mean that the instant shares were returned in the name of DD, but that the purchase price of shares was returned. Thus, the Plaintiff’s assertion itself does not constitute “the case where the donated property was returned” under the main sentence of Article 31(4) of the Inheritance Tax and Gift Tax Act.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

(c)