Seoul Administrative Court 2012Guhap4164 ( October 18, 2013)

for the purpose of tax avoidance, it constitutes the title trust donation agenda.

Although it is alleged that shares were held in title trust for the purpose of evading compulsory execution, it is difficult to conclude that there was no tax avoidance purpose in the title trust in the instant case, and there is no tax to be avoided at the time of the title trust or in the future, and the Defendant’s calculation of the market price of the instant unlisted shares is difficult, and it is legitimate to calculate the value by the supplementary evaluation

Article 45-2 of the Inheritance Tax and Gift Tax Act

2013Nu30874 Revocation of Disposition of Imposition of Gift Tax

UnionA

The Director of Gangnam District Office

Seoul Administrative Court Decision 2012Guhap44164 decided October 18, 2013

July 23, 2014

September 17, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of additional gift tax on the Plaintiff shall be revoked by the Defendant: ① OOO on December 15, 200 on June 5, 2012; ② OOO on December 21, 200; ② OO on December 15, 200 on April 15, 200 on the gift tax of December 15, 200 on the gift tax of December 15, 200; and ② OOO on December 21, 200 on the gift tax of December 21, 200.

1. Quotation of judgment of the first instance;

This court's reasoning is as follows, except for the addition of the judgment on the plaintiff's assertion that is especially emphasized or re-emphasized by this court, and therefore, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Judgment on the plaintiff's assertion

A. Summary of the argument

1) Non-existence of tax avoidance purpose

The title trust of the shares of this case issued by CCCCS Co., Ltd. (hereinafter “CCCS”) to the Plaintiff, ASEAN, as the Plaintiff, was merely a purpose of evading compulsory execution and avoiding taxes when the Republic of Korea solely failed to comply with the management right when it was brought against the NoBB. In other words, the Plaintiff is a related party to the NoBB, and there is no room to avoid the secondary tax liability or additional acquisition tax through the title trust of this case, and there is no possibility that CCCS would avoid income tax due to the lack of any deficit in paying dividends. Moreover, since it was confirmed that NoB was not donated to the Plaintiff, the title trust property of this case cannot be deemed to be subject to the amendment of the Inheritance Tax and Gift Tax Act (amended by Act No. 1201, May 9, 2013; hereinafter “NoBP”) and the value of the trust property of this case under Article 201 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 2010, May 1, 2013).

On December 21, 200, TradeB sold CCCS shares 65,000 shares to EE without special relation. At the time, FF accounting corporation determined the sale price after an objective evaluation of FF accounting corporation at the time, and the sales price was actually paid or received. Since the above transaction price is a example of business that fully reflects the objective exchange value, it should be the standard for determining the market price of the shares in this case. Even if there is no suspicion, the latter part of Article 60(1) of the Inheritance Tax and Gift Tax Act, which provides for the principle of appraisal of the value of the property subject to inheritance tax or gift tax, includes the value assessed in an objective and reasonable manner. Therefore, if an appraisal value is assessed by a reliable appraisal institution by an objective and reasonable method, it can be interpreted that it can be viewed as the market price. However, even if the appraisal value can be used as the basis for assessing the market price of the shares in this case, it is unlawful to determine the market price of the shares in this case by applying the gift tax without excluding all of it.

1) Determination on the non-existence of the purpose of tax avoidance

In full view of all the following circumstances admitted by the reasoning of the judgment of the court of first instance, even if all the evidence presented by the Plaintiff at the first instance and the first instance court were examined, it is difficult to conclude that the Plaintiff had no tax avoidance purpose in the instant title trust, and cannot be deemed that there was no tax to be avoided at the time of the instant title trust or in the future. In other words, ① the instant title trust was newly established by again title trust with the Plaintiff, even though TradeB, the actual owner of the instant shares, should cancel the title trust agreement on ParkGG, etc., and did not recover it under the name of the principal, and ② the Plaintiff was a lineal descendant of NowonB, unlike Park G, etc., who was not a specially related party with the instant shares acquired from a third party without any special relationship with the Plaintiff through the instant title trust, and thus, it is difficult to view that there was no possibility that the Plaintiff would have avoided the instant shares by taking account of the fact that there was no intention to avoid the instant shares, other than the Plaintiff’s inheritance tax evasion purpose at the time of the instant title trust.

2) Whether the market value of unlisted stocks is recognized

A) Whether business practices are recognized

Even in the case of unlisted stocks with low market value, where there is a transactional fact, the price of the stocks shall be deemed the market value and the price of the stocks shall not be assessed based on the supplementary evaluation method stipulated by the Act. However, the market value means the objective exchange price formed by the general and normal transaction. Thus, in order to recognize the transactional example as the market value, the circumstances that can be seen that the relevant transaction is made in a general and normal manner and reflect the objective exchange value at the time of the donation should be recognized (see, e.g., Supreme Court Decision 2010Du00, Apr. 26, 2012)

(5) On the other hand, on the other hand, the Seoul Central District Court (9) rendered a favorable judgment of 20G 10 on September 28, 2001 on the fact that the above 20G shares were transferred to 30G 200 and the shares were transferred to 20G 3G 20. The above shares were transferred to 20G 3G 20. The above shares were transferred to 20G 2G 3G 207. The court below held that the above shares were transferred to 3G 13G 20. The court below held that the above shares were transferred to 20G 13G 20. The court below held that the above shares were transferred to 20G 13G 20. The court below held that the above shares were transferred to 20G 5G 207 2G 3G 200. The court below held that the above shares were transferred to 20G 50G 13G 200. The above shares transfer order.

Article 60(2) of the Inheritance Tax and Gift Tax Act provides that “The market price shall be deemed to be normal if it is freely traded between many and unspecified persons.” Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 17828, Dec. 30, 2002; hereinafter “Enforcement Decree of the Inheritance Tax and Gift Tax”) provides that “the average value of the appraisal value appraised by two or more reliable appraisal institutions for the pertinent property shall be deemed to be the market price.” In light of the above purport of Article 60(3) and Article 63(1)1 of the Inheritance Tax and Gift Tax Act and Article 63(1)1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, if it is difficult to calculate the market price of the pertinent corporation’s non-listed shares, it is difficult to deem the market price of the non-listed shares to be the market price calculated based on the supplementary appraisal method prescribed by the Enforcement Decree of the Inheritance Tax and Gift Tax Act.” Furthermore, the purport of Article 2000 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is difficult.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and it is so decided as per Disposition.