Daejeon District Court 201Guhap3137 ( October 31, 2012)

Cho High 2010 Before 3119 ( October 20, 2011)

It is reasonable to view that a title trust was made, not by receiving an investment of stock acquisition funds.

(1) In light of the facts stated in the confirmation in the answer process at the time of investigation, it is reasonable to view that the title trust was held in title trust to the Plaintiff instead of being invested in the stock acquisition fund after concluding the investment agreement. It is insufficient to recognize that the title trust in this case did not have the purpose of tax avoidance.

2012Nu2830 Revocation of Disposition of Imposing gift tax

KimAAAA

The Director of the National Tax Service

Daejeon District Court Decision 201Guhap3137 Decided October 31, 2012

July 4, 2013

July 18, 2013

1. The plaintiff's appeal and the claim added in the trial are all dismissed.

2. The appeal costs and the costs of the lawsuit additionally incurred in the trial shall be borne by the plaintiff.

The judgment of the first instance is revoked. The defendant's imposition of additional tax amounting to KRW 000 on April 5, 2010, and ② the additional tax amounting to KRW 000 on January 3, 2013, and ③ the additional tax amounting to KRW 000 on April 5, 2010, and ④ the non-permanent tax amounting to KRW 000 on January 3, 2013, and the non-permanent tax amounting to KRW 000 on the additional tax on the gift tax amounting to KRW 200 on April 5, 200, were revoked (the defendant revoked the imposition of KRW 00 on the plaintiff, and KRW 00 on October 207, 200 on the additional tax amounting to KRW 0 on the gift tax amounting to KRW 00 on October 208, 200, and each of the above additional tax reverted to KRW 00 on October 16, 2013).

1. Details of the disposition;

A. On August 9, 1996, JungB acquired a total of 13,095 square meters of forests and 000 m3,095 square meters of 11,000 m3,095 m3 (hereinafter referred to as the “the forest of this case”) in Dong-gu, Chungcheongnam-gu, Dong-gu, Seoul (hereinafter referred to as the “the forest of this case”), and on October 31, 2008, paid only the amount of KRW 000 (the down payment of June 7, 2006, the intermediate payment of KRW 000, the intermediate payment of KRW 000 on September 5, 2006, and the intermediate payment of KRW 00 on February 2, 200, and the remainder of KRW 00 on October 31, 200, and paid the final return of KRW 3000,000 as of May 30, 209.

B. Meanwhile, from November 21, 2007 to November 22, 2009, JungB transferred total of KRW 000,000, including the sale price of the forest of this case, to the account of AA Securities BB in the name of the Plaintiff. The Plaintiff acquired 8.340 weeks from November 21, 2007 to November 23, 2007, 203. The Plaintiff purchased 403.703 shares from October 31, 2008 to December 29, 2008 and acquired 412,043 shares (hereinafter “the shares”).

C. On January 3, 2013, the Defendant: (a) deemed that the actual owner of the instant shares is B; and (b) deemed that the Plaintiff was donated the value of the instant shares by the due BB; and (c) imposed a gift tax of KRW 000 on April 5, 2010 on the Plaintiff. Furthermore, on October 6, 2010, the Defendant issued a disposition imposing a gift tax of KRW 000 for the year 2008, on the ground that the first disposition of KRW 31, 2007 includes the part to be deemed to have been donated at the time of donation; and (d) imposed a disposition imposing a gift tax of KRW 000 for the year 200,000 for the gift tax of KRW 10,000,000 for each of the above dispositions imposing a gift tax of KRW 20,000 for the year 20,000 for the penalty tax of KRW 10,000 for each of the above dispositions imposing a gift tax.

(The following table omitted):

(hereinafter referred to as "each disposition of this case" refers to the imposition of additional tax of KRW 000 on the gift tax for 2008 January 3, 2013, which was revised, among the imposition disposition of gift tax for 2007, and the additional tax of KRW 000 on the gift tax for 2007, January 3, 2013, and the imposition disposition of KRW 000 on the gift tax for 2008, which was revised, among the imposition disposition of gift tax for 2008, as of April 5, 2010, and each disposition of this case.

[Reasons for Recognition] The whole purport of each of the arguments described in the facts without dispute, Eul 1, 2, and 4 through 8 (including the number, and hereinafter the same shall apply)

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) The Plaintiff agreed to make an investment agreement to distribute profits accrued after receiving and managing the investment funds from the dueB, and acquired the instant shares by receiving KRW 000 from the dueB from the dueB, and the Plaintiff did not acquire the instant shares under title trust, but did not trust the name of the Plaintiff Do-B to the dueB.

2) Since the transfer of title to the instant shares was not made in the name of the Plaintiff, the Plaintiff’s title trust on the instant shares is not recognized.

3) Even if the Plaintiff’s title trust regarding the instant shares was recognized, the Plaintiff did not have an objective of tax avoidance due to the following reasons. The appraised value of the real estate held at the time determinedB exceeded his delinquent tax due to the following reasons. The Plaintiff agreed to lend KRW 000 out of the proceeds of transfer of the instant forest land to Nonparty Kim GG, and KimGG agreed to substitute for the transfer income tax of PBB due to the transfer of the instant forest.

4) Therefore, each of the dispositions of this case is unlawful and thus must be revoked.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) As to whether AB made a nominal purchase of the instant shares to the Plaintiff

In light of the evidence set forth in paragraph 1, the plaintiff's 0 BB testimony, and 1B testimony and arguments of the first instance court 2, and 2, the plaintiff's 0G 3B testimony and oral argument that the plaintiff's 0G 1's 2,000 won and 30's 1,000 won were transferred to the plaintiff's account in the process of questioning with the defendant's 2,00 won, and the plaintiff's 1,000 won was asked to the effect that the 0G 1,000 won was first 0,000 won, and that the 1,000's 2,00 won was 0,000 won, and that the 1,000 won was 0,00 won, and that the 1,000 won was 0,000 won of the 1,000 won of the 2,00 won of the 2,00.

2) As to the change of holders of the instant shares

Comprehensively taking into account the descriptions in subparagraph 1-2, 3, and 4-1, and 2 of the evidence Nos. 1-3, and the purport of the entire pleadings, and the shares in this case are found to have been registered in the name of the plaintiff on the actual register of shareholders on December 31, 2007, the date for closing the register of shareholders, and on December 31, 2008, 403, and 703 shares on the real register of shareholders, and the shares in this case were registered in the name of the plaintiff. Accordingly, this part of the plaintiff's assertion is without merit.

3) As to "the purpose of tax avoidance"

A) Relevant legal principles

The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) is to effectively prevent the act of tax avoidance using the title trust system and realize the tax justice. Therefore, the burden of proving that the purpose of tax avoidance is not included in the purpose of the title trust was applicable only to the case where the purpose of the title trust is not included, and in this case, the person asserting it. Therefore, the burden of proving that there was no other purpose of the tax avoidance can be proved by means of proving that there was no other purpose of the tax avoidance, but the nominal owner bearing the burden of proof is not related to the tax avoidance to the extent that it is deemed that there was no purpose of the tax avoidance in the title trust, and that there was no tax avoidance at the time of the title trust or in the future, and that there was no tax avoidance at the time of the title trust or in the future, the doubt should be proven to the extent that the doubt is not supported (see, e.g., Supreme Court Decision 200Du12424, Sept.

B) Whether the purpose of tax avoidance is recognized

According to the statements in Gap and Eul evidence Nos. 8 and 12, and 13 and some testimony of the witness KimGG of the party trial, and after Kim GG borrowed a total of KRW 0 million from JungB to December 30, 2008, it is not sufficient to recognize that the above money has not been repaid or paid a fixed BB transfer income tax due to the transfer of the forest land of this case until December 30, 2008, because there is no ability to repay the above money, even though it is not possible to pay the above money, and there is no evidence to support this part of the plaintiff's assertion. This part of the plaintiff's assertion is without merit.

3. Conclusion

Then, the plaintiff's claim in this case is all dismissed due to the reasons, and the judgment of the court of first instance which dismissed the disposition of gift tax belonging to the year 2008 on April 5, 2010 and the request for revocation of the disposition of gift tax belonging to the year 2007 on October 6, 2010 as the conclusion is legitimate. Therefore, the plaintiff's appeal and the request for revocation of each disposition of penalty tax belonging to the court of first instance as of January 3, 2013 added in the trial are without merit, and all of them are dismissed. It is so decided as per Disposition.