Return of the sale price of title trust shares

It cannot be deemed that the return of the price for sale of title trust shares is the return of the property donated under the Inheritance Tax and Gift Tax Act.

The contents of the decision shall be the same as attached.

1. The plaintiffs' claims against the defendants are all dismissed.

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

The head of Sungnam District Tax Office revokes the imposition of gift tax on the Plaintiff Sung-dong Tax Office on the Plaintiff Sung-dong Tax Office, and the head of Sung-dong Tax Office would revoke the imposition of the gift tax on the Plaintiff Sung-dong Tax Office on the Plaintiff Cho Jong-B, and the imposition of the gift tax on the Plaintiff KimV on each of the above details of the imposition of the gift tax on the Plaintiff KimV.

1. Details of the disposition;

The following facts are not disputed between Gap's evidence 1-6, Gap's evidence 2-1-2, Eul's evidence 3-1 through 8, Eul's evidence 1-3, Eul's evidence 1-1 through 6, and the whole purport of arguments and arguments.

A. Disposition of imposition on Plaintiff E-E and Park DoD

(1) On October 1, 2003, Plaintiff EE acquired KRW 30,000 per share shares of FFFF (hereinafter referred to as NNN) Co., Ltd. (hereinafter referred to as “NN”), an unlisted corporation, at KRW 48,790 per share (the above shares were divided into face value with 10,487,900 shares on November 22, 2003) and acquired KRW 126,00 per share from GM on November 24, 2003.

(2) On December 9, 200, Plaintiff EE transferred YY Co., Ltd. (hereinafter “YY”) 3,750 won per share to YY Co., Ltd. (hereinafter “YY”) on December 276, 2003 among the above shares (part of the shares acquired from SS; hereinafter “YY”), 77,100 shares per share on the same day (part of the shares acquired from SS), and reported capital gains tax on March 2, 2004 on March 2, 200 (134,000 shares acquired from SS + 126,00 shares, 00 shares acquired from SS), and on March 2, 200, 200 shares (30,000 won, 200 won, 120,000 won, 200 won, 301, 201, 300, 201, 301, 2004, 2004, 3001, 1300.

(3) On the other hand, on December 9, 2003, Plaintiff Park Jong-D acquired FF shares of KRW 77,100 per share of KRW 3,800 per share from Plaintiff Jeong-E, and acquired KRW 115,250 per share of KRW 3,50 per share from the lastW on December 16, 2003 (hereinafter “each of the above FFF shares of KRW 192,350 per share”), and on June 21, 2004, transferred the total of KRW 192,350 per share of the above FF shares of KRW 192,350 per share to other 3,00,000 per share.

(4) From November 6, 2005 to January 30, 2007, the director of the Seoul Regional Tax Office confirmed that the title trust was made by KimA, who was a representative director of FF and a major shareholder, of the said shares acquired in the name of MaE and ParkD, and notified the head of the competent tax office of Sungnam Tax Office and the head of the competent tax office of Sungnam Tax Office of taxation data.

(5) Accordingly, on March 16, 2007, the head of Sungnam Tax Office issued a notice of KRW 171,776,360 of gift tax on the gift of November 1, 2003 among the parties on October 1, 2003, on the basis of the provision of “the deemed donation of title trust property under the Inheritance Tax and Gift Tax Act” to the Plaintiff E-E, which added the premium rate of KRW 15% to the largest shareholder at the time of each acquisition to the market price, and then corrected the market price of KRW 135,85,190,49,198,400 for each market price on June 16, 2008.

(6) In addition, on March 15, 2007, the head of Sungdong Tax Office issued a notice of KRW 2,200 per share of KRW 1,273,313,860, gift tax on the gift of December 9, 2003, and KRW 2,814,217,340 on the gift of December 16, 2003, based on the provision of “the deemed donation of title trust property” under the Inheritance Tax and Gift Tax Act, based on the transaction example value of KRW 28,00,00 per share of KRW 197,983,540,540,428,569,40 for each gift tax, except the market value per share of KRW 28,00,00 for each gift tax.

B. Disposition against Plaintiff BB, and KimCC

(1) From November 6, 2006 to January 30, 2007, the director of the Seoul Regional Tax Office conducted an investigation of stock change with respect to YY, a non-listed corporation, and confirmed the fact that YY was retitled with Plaintiff ChoB, and 784,500 shares each, and notified the head of the competent tax office and the director of the competent tax office of Nowon-gu, the head of the competent tax office of 1,169,00 shares issued in title after establishing YY substantially on February 18, 2003 as follows.

(2) On April 1, 2008, the head of the Nowon District Tax Office and the head of the Seongbuk District Tax Office assessed the market price per share of KRW 2,382 on the basis of the provision on the constructive gift of title trust property under the Inheritance Tax and Gift Tax Act to Plaintiff ChoB, KimCC, and notified each of them of KRW 930,378,770 on June 30, 2004.

(c) Procedures, etc. for the preceding trial;

(1) Upon receiving an objection on June 15, 2007, Plaintiff EE filed an appeal on March 24, 2008; Plaintiff Park Jong-D on June 14, 2007; on March 24, 2008; Plaintiff ChoBB; and KimCC filed an appeal on May 30, 2008 with the competent Tax Tribunal seeking revocation of the imposition of each gift tax.

(2) On December 18, 2008, the Tax Tribunal rendered a decision on December 18, 2008 on the Plaintiff’s claim on “FFF shares 77,100 that was transferred by the head of Sungnam Tax Office to Plaintiff Park Jong-D on December 9, 2003, which was deemed to have been returned to the title truster KimA within three months from the date of the donation of the secondary title trust (in the case of the title trust of Plaintiff Park Jong-D, separate gift tax was levied), and on the statement of stock change, 260,000 shares reported to the title truster Kim Jong-A in the future on the date of transfer to the actual owner and were returned to the actual owner within three months from the date of donation, so the tax base and amount of tax are excluded from each subject of gift tax, and the remainder of the claim is dismissed.” The Plaintiff’s decision on December 28, 2008 was dismissed.

(3) According to the purport of the decision of the Tax Tribunal on February 13, 2009, the head of Sungnam Tax Office additionally reduced the gift tax of 383,196,020 won on October 1, 2003, and 281,827,960 won on the gift of 24 November 2003 (as a result, each of the above dispositions of imposition of gift tax of 281,827,960 won on October 1, 200 on the gift of 1, 203 were imposed on E, and each of the above dispositions of imposition of gift tax of 276,800 won on the shares acquired from SS on October 1, 203, 203, 'each of the above dispositions of imposition of gift tax of 'the shares remaining' on each of the above dispositions of imposition of each of the above claims against the Defendants.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

(1) Non-existence of tax avoidance purpose

The reason why KimA held the title trust of each of the instant key shares is not for the purpose of tax avoidance, but for the purpose of YA’s transfer of the FF’s business image to YY in order to satisfy the requirement for share distribution, one of the requirements for the registration of KOSDAQ and Na; and to avoid negative impact on the business image of the FFF to be listed on Na; and to conceal that Y’s major shareholder was KimA before the transfer to YY. As such, each of the instant dispositions based on the premise that the title trust of each of the instant key shares was made for the purpose of tax avoidance are unlawful.

(2) Application of a non-taxation provision on gift tax due to the return of donated property (Plaintiff E)

Inasmuch as it is in conformity with the empirical rule that the KimA received the return of the instant issue ① shares, which was trusted to the Plaintiff EE on December 9, 2003, and then disposed of them to the YY, KimA’s disposal. As such, the instant issue ① shares deemed as donated as a nominal trust property may be deemed as donated property returned to KimA, a title truster, within three months from the date of title trust, and thus, the provision on deemed donation of trusted property pursuant to Article 31(4) of Inheritance Tax and Gift Tax Act can be applied.

(3) Violation of the method of calculating the market price (Plaintiff Park Jong-D)

The trading price of 28,00 won as of December 19, 2003 alleged by the Defendant Sungdong Tax Office is a small-scale transaction made under a vague expectation, if the FF listing is held after hearing the FF listing lawsuit, but the stock price is considerably increased. The trading price of FF shares during the 2 months before or after the date of title trust of the instant case ② The issue of this case, which is the base date for appraisal, cannot be seen as a general and normal transaction with a very large amount of price fluctuations from 3,000 won per share to 40,000 won per share. Thus, the issue of this case ② the market price as of the date of title trust of shares, as of December 19, 2003, the market price as of December 19, 2003, is not considered as the trading price as of December 19, 2003, because the market price of the instant shares held in title trust to Plaintiff ParkD is difficult to be calculated as the trading price as of October 1, 2003 through 130.

(b) the relevant regulations;

The entries in the relevant regulations in the attached Table shall be as follows.

C. Determination

(1) As to the non-existence of tax avoidance purpose

The legislative intent of Article 41-2 of the Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle in the purport that the act of tax avoidance using the title trust system is effectively prevented, and thus, it is possible to apply the proviso of the same Article only in cases where the purpose of tax avoidance is not included in the purpose of the title trust, and in such a case, the burden of proving that there was no purpose of tax avoidance exists any other purpose than the purpose of tax avoidance. Therefore, the title trustee who bears the burden of proof may prove it by means of proving that there was no purpose of tax avoidance. However, the title trustee, who bears the burden of proof, has the objective of a clear title trust that is irrelevant to the tax avoidance in the title trust to the extent that it is recognized that there was no purpose of tax avoidance in the course of the title trust, and that there was no tax avoidance in the future at the time of the title trust or in the future, must be proven to the extent that it does not have doubt if there is an ordinary doubt based on objective and conclusive evidence (see,

However, in order to presume that the FF’s listing requirement was not met, and that the FFF’s listing requirement was not affected by the FFF’s corporate image on July 21, 2003. In order to conclude that YY’s major shareholder was Kim YA’s title trust, it was difficult to find that the number of holders of each of the instant shares was reduced due to the FFF’s title trust to the Plaintiffs, and that it was difficult to find that the FFF’s sale of shares was in conflict with the Plaintiff’s view that the FFF’s sale of shares was carried out in the process of 00,000 if the FFF’s sale of shares was not carried out for the purpose of 20,000, and that the FFF’s sale of shares was not carried out for the purpose of 20,000,0000,0000,0000,0000).

Rather, according to the statements in Eul evidence Nos. 6 and 22, KimA, at the time of title trust with respect to each of the issues of this case, owns the FF shares equivalent to 70%, and in substance, YY shares were owned by KimA. Thus, if KimA acquired each of the issues of this case in its own name, it would have no choice but to bear secondary tax liability as an oligopolistic shareholder of FF and YY with regard to the equivalent amount of the shares ( even if the Plaintiff is liable for secondary tax liability, a large number of the plaintiffs appear to have no real ability). If the market price of each of the issues of this case is assessed based on the supplementary assessment method of inheritance tax and gift tax, if the inheritance tax and gift tax are assessed based on the supplementary assessment method of the market price of each issue of this case, it can be known that the capital gains tax burden varies by deeming the amount calculated by adding AAA to the appraised value of shares as the transfer value, and when the amount exceeds 40 million won, it should be calculated by adding it to the global income tax rate.

Therefore, this part of the plaintiffs' assertion is without merit.

(2) As to the assertion on the application of non-taxation provisions on gift tax due to the return of donated property

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, and the interpretation of tax laws shall be interpreted as the text of the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret that the provision that is clearly considered as a preferential provision among the requirements for reduction or exemption accords with the principle of fair taxation (Supreme Court Decision 2002Du9537 Decided January 24, 2003).

Meanwhile, the property deemed donated under Article 45-2(1) of the Inheritance Tax and Gift Tax Act is the title trust shares that are not the purchase price for the title trust shares, and the title trustee’s disposal of the title trust property and returning the price to the title truster is naturally planned in the context of the title trust for the purpose of tax avoidance. If the title trustee construed that the return of the price for disposal of the title trust property or the amount equivalent to the value of the property donated to the title truster is not the return of the property donated to the title truster, and thus, if gift tax cannot be imposed by deeming the title trustee as a return of the property, the title trust act would be regarded as a donation, and thus, the purpose of the law to restrain the title trust for the purpose of tax avoidance would be eliminated, and thus, the return of the price for sale of the title trust shares cannot be deemed as the “return of the property donated” under Article 31(4) of the Inheritance Tax and Gift Tax Act (see Supreme Court

In full view of the overall purport of evidence Nos. 9, 6, and 18, the key issue (i) shares of this case were nominal trust with the Plaintiff EE transfer from the DamageS on October 1, 2003. KimA entered into a contract with YY to sell the key issue (i) shares under its name, and received the sales price. When transferring the key issue (i) shares of this case to YY, it was immediately changed from YE without returning its title to YY in the name of YY, and the Plaintiff EE reported and paid the transfer income tax on the transfer under its own name on March 2, 2004. Although KimA, a title truster, entered into a sales contract for the key shares of this case under its name, and received the price directly from the purchaser, it is natural that it is the Plaintiff EA’s internal legal relationship with the truster and the trustee, which is the result of return to the title trustee or the title trustee’s internal legal relationship.

Therefore, solely on the fact that KimA entered into a contract for transfer of shares (i) in its name, the issue of this case, as otherwise alleged in the Plaintiff Jeong-E, is not deemed to have been returned to the title truster KimA, who was a title truster, and again transferred to YY. The Plaintiff Jeong-E’s assertion on this part is without merit.

(3) As to the allegation of illegality in the market price calculation method

According to Article 60 of the Inheritance Tax and Gift Tax Act, the value of a property on which a gift tax is levied shall be, in principle, the market price which is a value generally accepted when a free transaction has been made between many and unspecified persons as of the date of donation, but such market price shall be deemed to include the expropriation and public sale price, appraisal price, etc. as prescribed by Presidential Decree. Accordingly, Article 49(1)1 and (2) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that, in cases of a donated property, where there is a transaction fact in relation to the pertinent property during the period of a tax base return for the gift tax from March of the base date of assessment to March of the base date of the gift tax, the transaction price on the nearest date of the base date of assessment shall be the market price. In full view of the above relevant provisions, to recognize the transaction example as the market price (see, e.g., Supreme Court

On the other hand, whether a certain transaction is a general and normal transaction that adequately reflects the objective exchange value of the transaction subject shall be determined by comprehensively examining the overall circumstances surrounding the transaction, such as ① whether the transaction parties are equal to pursuing the maximized economic benefits, ② whether the transaction parties have reasonable knowledge of facts related to the transaction, and whether the transaction has been made without coercion. If multiple transactions have been made between unrelated parties, such as family members and relatives, the burden of proving that the transaction does not fall under the general and normal transaction should be deemed to be the party asserting it.

In the process of investigating FF stocks, around the second half of 2006, 2006, the FFF stocks transaction details were as shown in the annexed Form 2. (No. 6) The head of Sungdong Tax Office confirmed the transaction example price of the FF stocks around the date of each title trust and confirmed the transaction price of the FF stocks at the time prior to the date of each title trust, and then purchased 1,000 FF stocks from Soyoung on December 18, 2003 to K on the same day, and sold 4,000 won per share with the total of 4,00 won per share after the due date, it is difficult to view that the FF stocks transaction value was 0,000 won per share after the due date to be sold, and it is difficult to view that the FF stocks transaction value was 200,0000 won per share, excluding the market price of the FF capital stock trading broker, and there is no objective transaction value at the close to 20,000,0000 won per share.

As seen in the above specification of transactions, FF shares were traded continuously between the majority of 2G shares before and after the date of each title trust, and the transaction price is also the same from October 1, 2003 to February 2004, which is difficult to view as normal transactions as shown below, within the scope of 37,000 won per share if the FF shares were traded on October 1, 2003 and November 24, 2003, and the value of 28,000 won per share was relatively low at the transaction price, and the FF shares were not at the market price of 3G shares at the time of each of the above 2G shares was not at the market price of 0G shares. The FF shares were not at the market price of 20G shares at the time of each of the above transaction, and thus, the FF shares were not at the market price of 3G shares at the time of 20G shares to be calculated separately from the market price of each of the above shares.

원고 박DD은 2003. 10. 1.자 손SS와 원고 정EE 사이의 주당 거래가액 3,000원 내지는 2003. 11. 24.자 박MM와 원고 정EE 사이의 주당 거래가액 3,500원(이하 '원고 주장의 매매사례가액'이라 한다)을 시가로 보아야 한다고 주장하나, 을 제23, 24호증의 각 기재에 의하면, 손SS는 관련 형사사건에서(서울고등법원 2004느2221호)에서 FFFF 전 대표이사인 김RR로부터 FFFF 주식을 소유하고 있던 중 김AA이 NNNN가 코스닥 상장을 하지 않는다고 하고, 명의개서도 해주지 않는다고 하며, 김AA에 대한 좋지 않은 소문도 있어 2003. 10. 1. 이윤을 남기지 않고 자신이 매입한 가격 그대로 되팔았다고 진술한 사실, 또한 박MM는 김AA에게 FFFF 주식을 주당 6,000원에 매도하였으나(실제로는 주당 3,500원에 매도하였다) 당시 시세에 따른 적정한 가격은 30,000원 정도라고 생각하였고 최소 15,000원 정도로 생각하였다고 진술하면서, 당시 박MM는 주식회사 QQ소프트 부사장이었는데, QQ소프트 사장인 김SS이 박MM에게 전화를 해서 김AA 사장이 업계에 영향력이 있는데 서로 손해가 안 났으면 주식을 넘기고 원활하게 처리했으면 좋겠다고 말하여 6,000원에 매도하게 된 것일 뿐이며, 실질적으로 그 거래로 인하여 손해를 많이 보았다고 진술한 사실을 각 인정할 수 있는바, 이와 같이 각 거래에 이르게 된 제반사정에 비추어 볼 때, 원고 주장의 매매사례가액은 강요에 의하지 아니하고 자유로운 상태에서 이루어진 거래에 의하여 형성된 객관적 교환가격에 해당한다고 보기 어려울 뿐만 아니라, 위 각 거래는 김AA이 원고 정EE에게 그 주식 명의를 신탁함으로써 실제로는 손SS, 박MM와 FFFF 대주주이자 이 사건 쟁점②주식 명의신탁 증여의제의 당사자인 김AA 사이의 거래라 할 것이어서, 불특정 다수인 사이의 거래라고 보기도 어려워, 이와 다른 전세에서 있는 위 주장 역시 받아들일 수 없다.

Therefore, the plaintiff Park Jong-D's assertion on this part is without merit.

(4) The theory of lawsuit

Therefore, each disposition is legitimate.

3. Conclusion

Therefore, all of the plaintiffs' claims of this case are dismissed without merit. It is so decided as per Disposition.