It is difficult to recognize that there was an agreement on title trust.

There is no evidence to acknowledge the authenticity of the seal imprint, and there is no proof as to whether the certificate of stock transfer, etc. was prepared on the basis of the Plaintiff’s intent, and whether it was due to a legitimate power

2016Guhap52352 Revocation of Disposition of Imposition of Gift Tax

AA

Head of the Tong Tax Office

November 21, 2017

February 13, 2018

1. On December 2015, the Defendant revoked the imposition of gift tax of 302, 190 won, and 890 won against the Plaintiff.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the instant case

A. On January 17, 2006, the Plaintiff was listed as BB BB (hereinafter “BB”)’s audit, and the shareholder registry of BB was listed as BB’s shareholder registry as indicated in the “acquisition of the instant shares” on January 17, 2006, the Plaintiff acquired 2,500 shares from thisCC as the purchase and sale of 2,50 shares on January 17, 2006, and thereafter acquired 3,500 shares as 6,00 shares of 3,50 shares for new shares with four additional shares issued (hereinafter “instant shares”).

B. ThisCC reported the acquisition value and transfer value of the instant shares under the Plaintiff’s name as KRW 60 million per share (10,000 per share) and paid capital gains tax and securities transaction tax.

C. Around July 2015, the DD regional tax office requested thisCC to provide explanatory data on the grounds that the acquisition value of the instant shares differs from the actual value of the instant shares, and thisCC submitted a shareholder title trust certificate (Evidence A5) stating, “I will report the FF shares under the name of AAA in the process of trusting the FF shares in the name of AA for the registration of the EE business at the time, because it inevitably lacks tax knowledge and is entrusted to the AA and will only be transferred or taken over to the account office. I will submit this confirmation.”

D. Accordingly, the Defendant: (a) deemed that the instant shares were held in title trust to the Plaintiff; and (b) applied Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter “former Inheritance Tax and Gift Tax Act”) by deeming that the instant shares were held in title trust; and (c) notified the Plaintiff of gift tax of KRW 302, capital gains,890, including the details of imposition of gift tax on the attached Table 1 (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed a tax appeal with the Tax Tribunal on March 15, 2016, but was dismissed on June 29, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, 13, the purport of the whole pleadings

2. Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

3. Plaintiff’s assertion and judgment thereon

A. Summary of the plaintiff's assertion

1) On January 17, 2006, thisCC prepared a certificate of stock transfer (No. 2-4) by forging the Plaintiff’s seal in order to create the same appearance as that of transferring 2,500 shares out of the shares of this case to the Plaintiff. ② On July 31, 2014, the Plaintiff prepared a certificate of stock transfer (No. 1-3) to make the Plaintiff’s seal in order to create the appearance of the same as that of transferring the shares of this case to thisCC, and made it known to the Plaintiff, and made the name of the shares of this case as the Plaintiff known to the Plaintiff.

Therefore, since the Plaintiff and thisCC did not have a title trust relationship, the instant disposition based on such premise is unlawful.

2) Even if the title trust relationship between the Plaintiff and thisCC is recognized, the instant disposition is unlawful since thisCC did not have the purpose of tax avoidance in holding the instant shares in the Plaintiff’s name.

B. Determination on whether a title trust relationship exists

1) As a matter of principle, the tax authority bears the burden of proof as to the legality of the disposition and the existence of the facts requiring taxation in the administrative litigation seeking revocation on the ground of the illegality of taxation disposition. In full view of each of the evidence Nos. 5, 16, and 9, 14 (including each number), the following facts can be acknowledged.

A) The Defendant asserted that there was evidence proving that there was an agreement on title trust between the Plaintiff and thisCC, and that on January 17, 2006, the Plaintiff purchased 2,500 shares out of the instant shares from thisCC, No. 2-2 (stock transfer certificate), and July 31, 2014, the Plaintiff sold all of the instant shares to thisCC. According to the evidence No. 14-4, the Defendant recognized that the Plaintiff filed a forgery of the instant shares transfer certificate on September 17, 2006, which was the personal seal impression of the Plaintiff.

B) The Plaintiff was appointed as an auditor of BB on January 17, 2006.

C) The Plaintiff was requested by the Plaintiff, her husband, to deliver a seal imprint, and issued it. This is currently serving as a director of BBB for more than 15 years.

2) However, in light of the following circumstances, it is difficult to find that there was an agreement on title trust between the Plaintiff and thisCC solely based on the above facts acknowledged, and without making a decision on the existence of the other alleged tax evasion purpose, the instant disposition is unlawful.

A) First of all, on January 17, 2006, Nos. 2-4 (certificate of stock transfer) and No. 1 (certificate of stock transfer) on July 31, 2014, stating that the Plaintiff purchased 2,500 shares out of the shares of this case from thisCC, that the Plaintiff sold all of the shares of this case to thisCC, shall not be admitted as evidence, since there is no evidence to acknowledge the authenticity of the Plaintiff’s seal imprint, it cannot be deemed that the Plaintiff and thisCC made the appearance of the above false acquisition relation under an agreement between the Plaintiff and thisCC.

On the other hand, the plaintiff filed a criminal complaint with thisCC for the crime of forging private document and received an investigation, and recognized that the 4th (certificate of stock transfer) of the evidence No. 2-2 was the principal (No. 4 of the evidence No. 14-2). However, according to the result of this court's seal appraisal, the plaintiff's registered seal impression and the plaintiff's seal impression on the certificate of stock transfer cannot be determined as identical to each other. ② The plaintiff asserted that there was only a fact of issuing a seal impression upon the husband's request that it is necessary at the time of incorporation, and according to the Gap evidence No. 9 (Register of Corporation), the establishment of BBB was around March 7, 200, ③ the date of issuance of the plaintiff's seal No. 2-5 of the certificate of stock transfer attached to the above certificate of stock transfer (No. 2-5 of the evidence No. 2) was different on May 8, 2006. Thus, the possibility that the plaintiff made a false statement from the investigative agency cannot be excluded.

B) If the stamp image of the person who prepared the document affixed the seal affixed to the document is affixed with his seal, barring any special circumstance, it shall be presumed that the authenticity of the stamp image is created, i.e., the act of affixing the seal is based on the will of the person who prepared the document. Once the authenticity of the stamp image is presumed, the authenticity of the document is presumed in accordance with Article 329 of the Civil Procedure Act. However, if it is found that the act of affixing the seal was carried out by a person other than the person who prepared the document, the document presenter is liable to prove that the act of affixing the stamp is based on the legitimate title delegated by the person who prepared the document (see, e.g., Supreme Court Decision 94Da41324, Jun. 3

According to the witness HH’s testimony, while engaging in an accounting-related business at BB, he merely affixed the seal of the Plaintiff’s name while preparing each of the above documents with the Plaintiff’s seal affixed to the Plaintiff either issued or the company, and asked the Plaintiff separately to agree to prepare a certificate of stock transfer and a certificate of stock transfer, and the Plaintiff’s seal kept in the company cannot be identified as a seal imprint. Thus, even if following the witness H’s testimony, the above documents were prepared by other persons than the Plaintiff, and there should be additional proof as to whether the above documents were prepared based on the Plaintiff’s intent and the legitimate power of attorney delegated to prepare the documents. In this respect, the Defendant merely asserted that there was an implied agreement between the Plaintiff and thisCC without presenting a specific delegation relation to the authority of preparation.

C) Different from the Plaintiff’s seal on the share transfer certificate as of January 17, 2006 and the Plaintiff’s seal on the share transfer certificate as of July 31, 2014. If the Plaintiff andCC agreed to the title trust, it appears that there exists no reason to affix the seal using different seals.

D) As seen earlier, thisCC submitted a shareholder title trust certificate (Evidence A No. 5) to the tax office around July 2015 to the effect that the Plaintiff had a title trust relationship with the Plaintiff, but thereafter, the Plaintiff filed a criminal complaint with the relevant tax office by forging a private document, etc., and the prosecutor made a criminal complaint with respect to the part that forged a certificate of stock transfer as of January 17, 2006, without the authority to institute a public prosecution, on the part that forged the certificate of stock transfer as of July 31, 2014, and suspended indictment for the portion that forged the certificate of stock transfer as of July 31, 2014, and at least thisCC recognized the forgery of the certificate of stock transfer as to the part that forged the certificate of stock transfer as of July 31, 2014. Thus, thisCC’s title trust assertion appears to be a unilateral assertion without

E) The Plaintiff was registered as the auditor of BB, but there was no fact that the Plaintiff was present at the general meeting of shareholders or as a shareholder.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.