National Tax Service Review Donation 2010-010 ( November 29, 2010)

A person who borrowed the name shall be deemed as a true shareholder.

Any real estate acquired by one of the married couple in his/her sole name during marriage shall be presumed to be the special property of the nominal owner, and if the source of the fund to acquire such real estate is clearly indicated to be that of another spouse, not the nominal owner, once the nominal owner is presumed to have donated the fund to acquire the real estate from the spouse, it shall be presumed that the

2011Revocation of revocation of disposition imposing gift tax, 6479

Park XX

Head of the District Tax Office

September 30, 2011

November 25, 2011

1. The Defendant’s disposition imposing gift tax amounting to KRW 11,464,530, which was imposed on the Plaintiff on June 1, 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. On May 11, 2006, the 100,000 shares of a stock company owned by 00,000 (hereinafter referred to as "non-party corporation") (hereinafter referred to as "non-party corporation") were transferred to the Plaintiff.

B. The director of the Central Regional Tax Office of China: (a) explained the survey of stock change with respect to the non-party corporation from March 10, 2010 to April 13, 2010; (b) upon the Plaintiff’s spouse’s participation in capital increase with respect to the non-party corporation’s capital increase in 2003 and substantial acquisition of outstanding shares; (c) on May 11, 2006, the transfer of ownership to the Plaintiff was made; (d) assessed the taxable value of donated property at KRW 370,90,000 by deeming that the transfer to the Plaintiff was made a donation to the Plaintiff; and (d) notified the Defendant of the taxation data on May 19,

C. On June 1, 2010, the Defendant imposed a gift tax of KRW 11,464,530 on the Plaintiff (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on October 28, 2010, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on November 29, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 1 (including a natural disaster; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Although the Plaintiff transferred the acquisition fund of the outstanding shares via the passbook of Korea-B, the spouse, the Plaintiff did not actually raise the funds to acquire the outstanding shares, and thus, the instant disposition was unlawful on a different premise.

2) Although the Plaintiff’s donation from Korea-B to Korea-B is merely the acquisition fund of the key shares, not the key shares themselves, even though the Plaintiff’s donation from Korea-B to Korea-B, the instant disposition that deemed the Plaintiff’s donation to Korea-B by itself is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On November 2003, ParkD, an executive officer of the non-party corporation, provided the non-party corporation with a capital increase for the consideration of the non-party corporation to the non-party corporation, the non-party corporation promised to transfer the shares after his/her participation. The non-partyCC recommended the non-party corporation to raise the capital increase together with the capital increase to the non-party B, which the non-party corporation accepted.

2) On November 11, 2003, the CivilCC remitted the amount of KRW 140 million for capital increase to ParkD on the part of November 11, 2003, and the HanB remitted the amount of KRW 70 million for capital increase to the CivilCC on December 9, 2003.

3) On December 2003, gambling acquired shares by paying 100 million won for new shares of a non-party corporation (the face value of KRW 500,000), and thereafter returned KRW 40,000,000 not used for new shares acquisition, out of KRW 140,000,000 received from the civilCC, to the civilCC. The civilCC returned the amount of KRW 20,000,000,000 (the share acquired by the B from 70,000,000,000,000,000,000) out of the said amount.

4) On May 31, 2005, ParkD transferred 200,000 new shares allotted to it to 0A, a spouse of the civilCC.

5) On May 11, 2006, 000, 000 shares were prepared with the Plaintiff and 200,000 shares were transferred to the Plaintiff among the 200,00 shares owned by the Plaintiff.

[Reasons for Recognition] Private Opinion without dispute, Gap evidence 2, 3, Eul evidence 2 to 4, the purport of the whole pleadings

D. Determination

1) source of funds to acquire the shares in question

As seen earlier, insofar as Korea-B, the husband of the Plaintiff, remitted 70 million won shares to Korea-CC, the Plaintiff’s shares were presumed to have been acquired with the funds of Han-B, so to deny this, the Plaintiff, the taxpayer, must prove the circumstances opposite to the Plaintiff. In this regard, according to the Plaintiff’s statement Nos. 7 and 8, the Plaintiff’s securities account (043-10-000) withdrawn from May 17, 2002 to the 22,370,585 won (20,000) one bank account (213-20382-00,000), and the Plaintiff’s one bank account (2,000,000,0000 won) was deposited from one bank account (20,000,000 won) to one of the above 20,000 won (20,000,000 won, 20,000,000 won or more) was withdrawn from one of the above 9B account.

2) Determination of actual shareholders of the outstanding shares at the time of capital increase

Therefore, the issue is whether the Plaintiff’s property donated from KoreaB is the key shares or the acquisition fund of the key shares. The issue is whether the Plaintiff should be considered as the genuine shareholder at the time of the capital increase for the consideration of the key shares is the first issue. According to Article 14(1) of the Framework Act on National Taxes regarding the substance of attribution, if the ownership of the property subject to taxation is merely nominal and there is a separate person to whom it belongs, the person to whom it actually belongs shall be the taxpayer and the tax law shall apply. Thus, if a real shareholder acquires shares by lending another person’s name, he/she shall be deemed as the nominal shareholder rather than the nominal shareholder (see, e.g., Supreme Court Decision 98Du13102, Jan. 18, 200). The instant case should be considered as the nominal shareholder (see, e.g., Supreme Court Decision 98Du13102, Jan. 18, 200).

3) Whether the Plaintiff’s shares are the issues donated

The instant disposition is premised on the Plaintiff’s husband’s acquisition of shares on the premise that the Plaintiff was donated to the Plaintiff. However, as seen above, inasmuch as the Plaintiff became the primary shareholder upon the allocation of outstanding shares at the time of capital increase due to the reason for Park DoD’s reason, and thereafter, the Plaintiff was transferred to the Plaintiff via 0A, the acquisition of shares by Korea-B is not recognized. Moreover, since the real estate acquired by one of the parties to a marriage under Article 830(1) of the Civil Act is presumed to be the unique property of the nominal owner, the real estate acquired under one’s own name during the marriage is presumed to be the real estate acquired by one of the parties, who is not the nominal owner, is presumed to be the property of the nominal owner. Therefore, if the fact that the source of funds to acquire the pertinent real estate is the other spouse, the nominal owner is presumed to have been donated the acquisition fund from the spouse (see Supreme Court Decision 2006Du8068, Sept. 25, 2008).

4) The legitimacy of taxation disposition, if deemed as a donation of acquisition fund

In the event that the Plaintiff’s donation of KRW 50 million from BB on December 9, 2003 is deemed to have been made by the Plaintiff, the tax amount calculated according to the instant disposition is a problem. According to Article 53(1)1 of the Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter the same), in the event that the Plaintiff received a donation from his spouse, the deduction is made within the limit of 300 million won. Thus, the amount of tax calculated based on the instant disposition is not justifiable but illegal.

3. Conclusion

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