National High Court Decision 2012J 5090, 5091, 5092, National High Court Decision 2012, 5079 ( October 30, 2013)

Gift tax on deemed gift of title trust for tax avoidance

It is a legitimate disposition that imposes gift tax on the constructive gift of title trust with the purpose of tax avoidance, such as avoidance of designation of the secondary taxpayer and avoidance of global income tax on dividend income.

Article 45-2 (Presumption of Donation of Title Trust Property)

2013Guhap1305 Revocation of Disposition of Imposition of Gift Tax

Gangwon and 10

KimA, AA, AA, A, A, or A is a person who was an employee of the instant company.

2) Since the incorporation of the company of this case on April 1, 1999, the plaintiff Gangnam-gu established the company of this case as follows.

The shares of the company were trusted in title to the remaining plaintiffs.

① on June 8, 2002, of shares 10,000 of the Company’s shares, 3,000 shares, 4,000 shares, 3,000 shares

for each transaction, the title trust of the plaintiff Lee Dong, ChoA, and KimA

② On June 10, 2002, 10,000 shares of the instant company were issued with capital increase with 10,000 shares as of June 10, 200

under title trust with the remaining 2,00 shares in the name of the principal and with the Plaintiff Cho Jae-A

③ Sale and purchase of shares held in the name of Plaintiff KimA on July 31, 2002, with respect to 3,000 shares.

cause title trust to the Plaintiff A.

④ Sale and purchase of shares 6,00 shares held by Plaintiff Cho Jae-A in the name of September 26, 2003

on the ground that the title trust is held against the plaintiff SongA

⑤ On March 8, 2005, the purchase and sale of shares 6,000 shares held under the name of the Plaintiff Song-A.

title trust to the plaintiff Song-A

6. Sale and purchase of shares 6,000 shares held under the name of the Plaintiff A on May 31, 2007

on the ground that among them, 4,000 shares are transferred under the name of the principal, and the remainder of 2,000 shares are transferred to the plaintiff Gangwon-CC

The reason for sale of title trust, the shares held by the Plaintiff under the name of SongA for 6,000 shares

Of them, 4,000 shares in title trust to Plaintiff KangB, the remainder of 4,000 shares to Plaintiff KangD respectively.

(7) Sale and purchase of shares held on November 20, 200 in the name of the Plaintiff KangB on November 20, 2008

For reasons of title trust to the plaintiff CC

8. Stocks held on January 5, 2009 in the name of the principal and shares held in the name of 4,000 and shares held in the name of the Plaintiff Audit Committee.

§ 4,000. The title trust, the title trust, and the Plaintiff’s GangwonD name are held to the Plaintiff U.S.A by reason of sale.

title trust with the Plaintiff Park Jong-A on the ground of sale of 4,00 shares held 4,00 shares

B. The defendants' disposition of this case

1) The director of the Central Regional Tax Office of the Republic of Korea has conducted a tax investigation with respect to the company of this case.

The purpose of tax avoidance is to deem that the company's shares were trusted to the remaining plaintiffs.

On or before May 2012, the notice of the results of the tax investigation to the plaintiff Gangwon-A and the remaining plaintiffs' prior notice of taxation.

The notification was given.

2) Accordingly, the rest of the Plaintiffs except Plaintiff GangwonA may request a pre-assessment review on June 28, 2012.

In July 2012, the director of the Central Regional Tax Office of the Central Regional Tax Office of China shall not adopt it, and against the defendants, he shall not adopt it.

The taxation data was notified.

3) Accordingly, the Defendants proposed the Plaintiff Gangwon-A on the date indicated in the “Date of Notice of Details of Imposition of the Attached Gift Tax” column

The term "donation tax amount" shall be notified to the remaining plaintiffs, and the gift tax amount shall be notified to the plaintiff Gangwon-A.

Upon notifying the remaining plaintiffs that they were designated as joint taxpayers with respect to the above gift tax;

The gift tax was notified (hereinafter referred to as the "disposition of this case").

4) The Plaintiffs dissatisfied with the instant disposition and filed a tax appeal on October 30, 2012, and subsequently, filed a tax appeal.

The Tribunal, on January 30, 2013, dismissed the rest of the plaintiffs' claims except for plaintiffs Park Jong, and on January 30, 2013

3.6. The claims of the Plaintiff Park Jong-A were dismissed.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The GangwonA shall have three or more shareholders of the company from a certified judicial scrivener at the time of incorporation of the company

(1) In order to hear advice and meet the above requirements, the remaining plaintiffs of this case's shares

title trust to the Plaintiff, especially the Plaintiff’s GangwonB, the KangCC, and the DodD, the child of which is the child.

A title trust of the shares of this case was made in a way to raise a doubt about the company.

It is only the fact that the title trust of this case was actually avoided taxes.

in title trust with the shares of the company of this case, the plaintiff is deemed to have the purpose of tax avoidance.

The instant disposition that applied the provision on deemed donation of title trust to those persons is unlawful.

B. Relevant statutes

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

C. Determination

1) The former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002); and

December 18, 2002, amended by Act No. 6780 of December 18, 2002, and amended by Act No. 7010 of December 30, 2003

Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (Law No. 7010, Dec. 30, 2003)

After the amendment, the Act was amended by Act No. 8828 of Dec. 31, 2007 and the Act of Dec. 31, 2007

Article 45-2 Subparag. 1, 2010 after the amendment by Act No. 8828, Jan. 1, 2010

Article 45-2(1) of the Inheritance Tax and Gift Tax Act, the legislative intent of Article 45-2(1) is to use the title trust system

The substance over form principle to the purport that the tax justice is realized by effectively preventing tax avoidance activities;

Since the exception is recognized, the purpose of tax avoidance is included in the purpose of title trust.

(1) The proviso to paragraph (1) of the same Article shall apply only if such provision is not applicable and has no objective of tax avoidance.

The burden of proof on this issue is the nominal person who asserts it. Therefore, the title of the tax avoidance is the object of the tax avoidance.

It can be proved by means of proving that there was no other purpose than the purpose of tax avoidance, but the nominal owner who bears the burden of proof is the tax association in the title trust.

The name was the obvious purpose of tax avoidance and tax avoidance to the extent that there was no objective of avoidance.

objective and acceptable evidence that there was no tax to be avoided at the time of the trust or in the future;

If the data is ordinarily used, it must be proved to the extent that the data would not have any doubt (Supreme Court).

Furthermore, whether there was an objective of tax avoidance or not, or not. Whether there was an objective of tax avoidance or not

It shall be determined at the time of title trust as to shares, and thereafter, the above taxes shall be actually paid.

It does not mean to determine whether a person has evaded (Supreme Court Decision 2003Du4300 Decided January 27, 2005).

[Reference]

2) In light of the above legal principles, in the instant case, health class No. 2-1 through No. 7, and No. 2

The purport of all pleadings is as follows: evidence 18, 19-1, 2, Eul evidence 21-1 through 3

In full view of the following circumstances, i.e., the establishment of the instant company:

To hear advice from a certified judicial scrivener that there shall be three or more shareholders of the Si and to meet the above requirements.

The former asserts that the shares of the company of this case were trusted in trust to the remaining plaintiffs

Article 288 of the Commercial Act (amended by Act No. 6488 of July 24, 2001) establishes a stock company.

In order to establish the company of this case, 3 or more promoters must be required.

In April 1, 1999, it is recognized that there was a need for more than three promoters;

After that, as the Commercial Act was amended on July 24, 2001, there is no number of promoters required for the incorporation of the company.

In addition, there was no restriction on the Plaintiff's strong innovation, as well as the remaining Plaintiffs of the shares of the instant company.

At the time of trust in the name of the Plaintiff, the Plaintiff did not have any limit on the number of shareholders under the Commercial Act.

Acts and subordinate statutes that shall continue to maintain a large number of shareholders after the incorporation of the company of this case.

In the absence of special circumstances in the light of the foregoing, 2. The plaintiff Gangwon-A from 1995 to 1995

Persons who have experience in establishing and operating a corporation and related parties, AA Petroleum Corporation

AA Petroleum Corporation Act in the course of undergoing a special tax investigation while holding 100% of shares;

The representative director shall be appointed during the period of investigation when the amount of tax exceeding 1.1 billion is notified due to taxes, value-added taxes, etc.

shares of the corporation, which was held by such corporation and held by such corporation

of avoidance from the secondary tax liability as an oligopolistic shareholder by transferring the title to the other person.

In light of the above, it is difficult for the plaintiff to easily understand that such plaintiff erred in the requirements for shareholders of a stock company under the Commercial Act, and 3 May 31, 2007.

60% of the secondary tax liability as an oligopolistic stockholder may be avoided by owning 60% in the name of the principal.

Although it was alleged that there was no action, Article 39 of the Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006)

According to the main sentence and proviso of paragraph (1) of this Article, a corporation shall be imposed on the property of the corporation or

If the payment of national taxes, additional dues, and disposition fee for arrears is insufficient, outstanding stocks of the corporation

OTC stockholders who exercise rights to stocks, etc. of 51/100 or more of the total number or total amount of investment shall be subject to secondary tax liability for such shortage: Provided, That where the scope of tax liability falls short

the number of oligopolistic shareholders owned by the amount divided by the total number of outstanding shares or equity investment of the corporation; or

to the extent of the amount calculated by multiplying the amount of investment, and in light of these provisions,

under section 40 of the title trust among the shares of this corporation

It cannot be readily concluded that there is no possibility to avoid the secondary tax liability as an oligopolistic stockholder.

The earned surplus of the company of this case 304,724,639 won in 2004, and 262,780,972 in 205

Won, 274,605,863 won in 2006, 286,786,990 won in 2007, and 2008

280,474,768 won, 244,350,454 won for the year 2009, and 224,525,03 won for the year 2010 respectively.

the earned surplus accumulated in 1,967,91,242 as of March 2010.

Taking into account the possibility of allocating the same earned surplus, the Plaintiff Gangwon-A all the shares of the instant company

shares of the corporation of this case in comparison with the receipt of a dividend under its name;

B was likely to reduce the global income tax burden, which is the global income tax, by title trust.

(5) A distribution of the profit of the instant company without any default of corporate tax, etc.

the title trust of the shares of this case due to the lack of the circumstances in which the title trust of the shares was actually avoided;

Although there was no excess, whether there was a tax avoidance purpose or not shall be determined at the time of title trust.

It should be determined on the basis of whether the above tax was actually evaded or not.

In light of the above, the evidence submitted by the plaintiffs alone is not sufficient to hold the shares of this case.

It is insufficient to view that the Plaintiffs had a clear purpose of tax avoidance and no relation at the time of title trust.

(3) there is no other evidence to deem otherwise.

Therefore, the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case against the defendants is without merit, and all of them are dismissed.

decision shall be made as per the disposition.

Mayang tax affairs and 3

April 29, 2014

May 13, 2014

1. The plaintiffs' claims against the defendants are all dismissed. 2. The costs of lawsuit are assessed against the plaintiffs.

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. Title trust with the remaining plaintiffs of the plaintiff Gangseo-A

1) As a person who establishes and operates a company of this case, the Plaintiff’s Gangwon-do is a child of the Plaintiff’s Gangwon-do, Gangwon-do, and Gangwon-do, and the Plaintiff’s Park is a person who was an employee of the instant company, and the Plaintiff’s Park is a person who was an employee of the instant company.