National High Court Decision 2007Gu2406 (207.05.01)

Recognizing that the title of shares was trusted, the actual owner of the shares shall be liable to pay taxes.

It is recognized that the title of stock ownership was trusted, and the transfer income tax is subject to reporting and payment as a major shareholder pursuant to Article 157 of the Enforcement Decree of the Income Tax Act, regardless of whether there was an objective of tax avoidance, the actual owner of stocks is liable to pay tax on

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of capital gains tax of KRW 436,427,728 against the Plaintiff on February 15, 2007 shall be revoked.

1. Details of the disposition;

A. As between March 23, 2005 and August 30, 2005, the Plaintiff acquired 816,692 shares of △△△△ corporation (hereinafter referred to as △△△△), and sold the entire amount of shares, and between April 11, 2005 and July 27, 2005, the Plaintiff, the Plaintiff’s seat, acquired 923,073 shares of △△△△ corporation (hereinafter referred to as “the shares of this case”), and sold the entire amount of shares of △△△△, and then sold each transfer margin. However, all transfer income tax was not reported.

B. The director of the Seoul Regional Tax Office conducted a consolidated investigation of corporate tax against ○○○○, and notified the Defendant to impose tax on KRW 3,762,963,118 on gains from transfer generated from the securities account in the name of the Plaintiff and KRW 3,037,03,03,378 and KRW 725,959,740, and KRW 3,762,963,118. On February 15, 2007, the Defendant corrected and notified the Plaintiff of KRW 441,403,160 for the transfer income tax reverted to the year 2005.

C. The plaintiff appealed and filed an appeal with the Tax Tribunal on May 1, 2007, but on May 1, 2008.

2.2. The Plaintiff’s claim was dismissed.

D. On December 20, 2010, the Defendant included 41,512,861 won as necessary expenses for stock transactions in the securities account under the name of the Plaintiff, omitted, and deducted 75,985 won for the acquisition price of the securities account under the name of thisCC, from the securities account under the Plaintiff’s name until March 23, 2005 to August 30 of the same year, sold all of 816,692 shares to 3,037,079,363 won (transfer value 3,743,502,935 - acquisition value 678,227,95 won - necessary expenses 28,195,5777, 207, 360, 467, 367, 406, 475 of capital gains tax remaining after the acquisition price of the securities account under the name of the Plaintiff, 205, 360, 475, 2974, 2797

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 1, 2, 3, 5, and 15 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff did not have held title trust with the Plaintiff’s shares, and it is unreasonable to impose capital gains tax on the Plaintiff on the instant shares, which were directly managed by the Plaintiff, on the Plaintiff.

(2) Even if the instant shares were held in title trust with a small AA, it cannot be deemed that the Plaintiff had a purpose of tax avoidance. Thus, the Defendant’s disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the Plaintiff’s first argument

In full view of the overall purport of the arguments in Eul evidence Nos. 4, 10, and 11, from April 6, 2005 to July 26, 200 of the same year, 426,065,085 won out of 1,05,085 won deposited in the account of △△ Securities under the name of the plaintiff was deposited in the name of the plaintiff. From 1,190,000,000 won out of the same account, 65,000 won out of 1,190,000 won, 50,000,000 won out of the plaintiff's account of △△ KimD, and 2,00,000,000 won out of the plaintiff's account of this case's account, the plaintiff's statement of △△△△△△△△△△△△△△△△△△△ value was transferred from the plaintiff's account under the name of the plaintiff's △△△△ value.

(2) As to the second argument of the Plaintiff

In full view of the purport of the argument in Eul evidence No. 3, 200, the plaintiff purchased 455,000 shares (2.99% of shares in △△△△, which is the plaintiff's son on the same day, from the above company on the same day. According to the above facts of recognition, the plaintiff is in E-E and mother-child relationship, which is the major shareholder of △△△△, and is subject to the return and payment of capital gains tax pursuant to Article 157 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009). Thus, regardless of whether the plaintiff had the purpose of tax avoidance, the plaintiff is liable to pay capital gains tax as the actual owner of shares arising from the account of △△△, which is the borrowed account, and this E- which is the plaintiff's son also has no further reason for the plaintiff's assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.