The filing date of the legal fiction of stock title trust and the filing date of the statement on the change of stocks shall be determined as deemed donation.

The process of acquiring the shares should be comprehensively determined, and the burden of proof that there is no purpose of tax avoidance is against the person claiming it, and where the change of ownership is not made due to the lack of the register of shareholders or the register of members, the date of submitting the statement of the change of shares shall be deemed the date of

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

2017Guhap102364 Revocation of Disposition of Imposing gift tax

○ Kim

○ Head of tax office

December 14, 2017

February 1, 2018

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

A. The Plaintiff was registered as the representative director from July 16, 2008 to October 19, 2012 on the corporate register of AA Co., Ltd. (former amendment on January 19, 2006: BB, and trade name before amendment on May 11, 2009: CCC Co., Ltd.; hereinafter referred to as “instant company”) established for the purpose of civil engineering, construction work, etc., and is the coexistence of DDR registered as the representative director from December 13, 2015 to December 19, 2012 in the corporate register of the said company.

B. From April 26, 2016 to May 31, 2016, the ○○ regional tax office conducted an integrated investigation into the instant company (hereinafter referred to as “instant investigation”). DDR decided that the total amount of 24,500 shares of the instant company under the name of the Plaintiff (hereinafter referred to as “instant assessment”) (12,00 shares on May 13, 2010; 2,000 shares on January 11, 202; 3,000 shares on June 11, 2012; 2,50 shares on June 13, 2014; hereinafter referred to as “the instant inheritance tax and gift tax” under the former Inheritance Tax Act (amended by Act No. 12501, May 13, 2010; hereinafter referred to as “the instant inheritance tax and gift tax”) were 25,500 shares, and the Defendant notified the Plaintiff of the title trust (hereinafter referred to as “the instant inheritance tax and gift tax”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on October 26, 2016, but the Tax Tribunal dismissed the appeal on February 22, 2017.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The absence of title trust

A) 12,00 shares acquired on January 19, 206 (1) 12,00 shares (1) and the date of deemed donation by the defendant: January 10, 2012)

Upon acquiring the instant company on January 19, 2006, the Plaintiff, III, and DD paid 29,000,000 won for total acquisition of the instant company to EE (725 won per share) and acquired 40,000 shares of the instant company (the Plaintiff acquired 12,000 shares in the name of MM, III, 12,000 shares for 16,000 shares, and DD acquired 4,000 shares in the name of FF, 12,00 shares in the name of GG, and 12,00 shares, the Plaintiff paid 8,70,000 won for acquisition of the instant company (=12,000 shares x 725 won) to HH corporation (hereinafter referred to as “H”) and paid 12,000 shares in cash or 80,000 shares of the instant company to the Plaintiff.

B) 7,000 shares (B) acquired on June 11, 2012

On June 11, 2012, the Plaintiff, III, and DD acquired the JJ Co., Ltd. (hereinafter “JJ”) with a total amount of KRW 58,00,000 per share of KRW 20,00 (2,90 per share of KRW 1) and acquired the JJ shares of KRW 20,000, and the instant company merged the JJ and subsequently acquired 20,000 shares of the instant company (the Plaintiff acquired 7,00 shares of KRW 3,00, KRW 7,000, KRW 7,000, and KRW 6,000 in the name of LL), while acquiring 7,00 shares among them, the Plaintiff received 7,00 shares of KRW 7,00,00, and paid D shares per share of KRW 20,30,000 (=7,0000 x KRW 2,90). Therefore, D itself was not paid to KR itself in cash.

C) 3,500 shares acquired on June 13, 2014 (III)

On June 13, 2014, the instant company issued capital increase of 10,000 shares (10,000 won per share) to acquire a license for reinforced concrete construction business. The Plaintiff acquired 3,500 shares and paid the acquisition price of 35,00,000 won from the instant company. Accordingly, 3,500 shares are not nominal trust.

2) Non-existence of tax evasion purpose

Even if the instant shares were held in title trust with the Plaintiff, the tax shall be imposed on DDR.

There was no objective of avoidance.

A) The instant company is the file file file work. HH is a company that evaluates the quality of the file that was executed. If the representative or largest shareholder of the construction company and the evaluation company are the same, DD has been holding shares in the Plaintiff’s name in order to avoid such business disadvantage, such as where the fairness of evaluation is doubtful by the order office and the participation in bidding is restricted.

B) The instant company had no purpose of evading dividend income from DDR since it did not have been distributed once up to now. The instant company had no purpose of evading the secondary tax liability of investors due to the lack of national taxes, etc.

(3) ① An error in the deemed donation date of a port stocks

Even if the instant shares were in title trust to the Plaintiff, and there was a purpose of tax evasion against DD, the deemed date of deemed donation on the said Paragraph (1) 12,000 shares ought to be recognized on January 10, 2012, not on January 19, 2012, but on the notarial document, at least on July 15, 2008, the date on which the Plaintiff acquired shares in the name of MM, not on January 19, 2006, or at least on the notarial document, the date on which the Plaintiff terminated the title trust with respect to MM.

4) An error in the valuation method of donated property

Since there is a transaction value with a third party (EE and KK) for the shares acquired on January 19, 2006 and June 11, 2012, the amount of KRW 8,700,000 and KRW 20,300,000, which is the transaction value, and the shares acquired on June 12, 2014 shall be calculated as the price of each property for the shares acquired on June 12, 2014.

B. Relevant statutes

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

(c) Fact of recognition;

The above evidence, Gap evidence Nos. 2, 4 through 6, Eul evidence No. 3, Eul evidence No. 4-1, 3, and Eul No. 10

In full view of the purport of the entire arguments, the following facts are acknowledged in each statement of evidence Nos. 12. 1) The main contents of the "annual stock holding details" (Evidence No. 3; hereinafter referred to as the "stock holding details") prepared and submitted by employees of the company of this case to ○○ Regional Tax Office during the investigation period of this case are as follows:

2) GG and FF are employees of DD, and III are registered as each representative director from January 19, 2006 to January 18, 2009, and from March 30, 2009 to December 23, 2015, as the former part of DD, from January 19, 2006 to July 15, 2008, as employees of DD, as the former part of DD, and MM is registered as the representative director on the corporate register from January 19, 2006 to July 15, 2008. LL is the Plaintiff’s husband and the Plaintiff’s partner.

3) On July 15, 2008, the Plaintiff and MM drafted a certificate of stock transfer with the purport that MM will transfer 12,000 shares of the instant company to the Plaintiff. On the same day, the board of directors of the instant company decided to appoint the Plaintiff as the representative director and approve the transfer of the said shares. Meanwhile, at the time of the instant company, MM, III, and directors GG were certified as a deed signed by a notary public as to the above share transfer certificate and the minutes of the board of directors as ○○ Office, etc. of the instant company as 3130 on the same day.

4) On January 10, 2012, the instant company submitted to the tax office a detailed statement on the change of stocks, etc. with the purport that MM transferred 12,000 shares to the Plaintiff. The said statement states that MM acquired 12,00 shares of the instant company on January 19, 2006 and transferred them on January 1, 2012.

5) On May 7, 2012, the Plaintiff, the representative director of the instant company, was merged with KK and continued to exist by combining the JJ as of June 11, 2012, and the JJ shall be dissolved. However, on June 11, 2012, the instant company drafted a merger agreement to issue 20,00 shares of registered ordinary shares as of June 11, 201 and to deliver one share of the instant company owned by the JJ shareholders.

6) On June 11, 2012, the Plaintiff, III, and LL drafted a share transfer certificate with respect to 20,000 JJ shares between KK and the Plaintiff, and III, respectively, with respect to 7,000 shares and 6,00 shares acquired by LL from K.

7) On May 3, 2016, III acquired DD’s actual representative director of the instant company on 2006, and at the time of the acquisition, DD representative director was in charge of HH’s representative director, and DD representative director acquired shares in the name of its employee because it could be disadvantageous to the company’s business if he/she concurrently holds the instant company. On 2012 and 2014, DD representative director acquired shares in the name of its employee as a result of acquiring DD representative director’s own funds. On 2012, DD representative director’s capital increase in capital with D representative director’s funds, signed on the confirmation column, and submitted it to ○○ tax official of the regional tax office.

D. Determination

1) Whether to recognize title trust

In full view of the following circumstances, it is reasonable to view that DD has entrusted the entire shares of this case to the Plaintiff by comprehensively taking into account the evidence mentioned above, as well as the evidence mentioned in the evidence set forth in the evidence set forth in Nos. 2, 5, and 7, as well as the overall purport of the testimony and pleading of DD. The evidence submitted by the Plaintiff, the witness GG, and the testimony of DD are insufficient to reverse the recognition. Thus, this part of the Plaintiff’s assertion is without merit.

A) First, we examine ① 12,00 shares of subsection (1).

(1) On January 19, 2006, shares of the instant company were acquired respectively in the name of GG, FF, MM, and III. On January 2006, KRW 29,000,000, DD was withdrawn from the account under the name of HH where DD was in the office of representative director, and was paid to EE, an existing shareholder.

(2) From August 201 to August 24, 2016 in HH, in NN Construction that runs a construction and civil engineering business, from April 4, 2012 to the date of its establishment, DDD was in office as a representative director from the date of its establishment. On April 2014, 201, DD was in office as a representative director of HH, NN Construction, and TG Group in charge of management of HH and HH, NN Construction, and Saturdays. DD testified to the effect that it was established in this court, one of the companies belonging to the above group, including HH, and that employees were to acquire the status of representative director or shareholder, and that it was difficult to view that DD was in fact in charge of management and management of the company, as its own testimony.

(3) The summary of the stock list prepared by the employee of the company of this case states "DD in actual quality." This part is interpreted as DD in the purport that the actual owner of the stocks acquired in the name of each shareholder of the above list is DD. Although DD is not the actual owner of the stocks of this case, it is difficult to view that the employee of the company of this case stated the above phrase in important documents related to tax investigation by tax officials' coercion, and there is no other evidence to acknowledge it. In addition, DD signed a written confirmation around January 19, 2006 to the effect that DD acquired the shares of this case in the name of employee of the company of this case, and it is difficult to find that C had worked as the representative director of the company of this case without properly reading the contents of the written confirmation, and there is no other evidence to acknowledge it otherwise.

(4) The Plaintiff asserted that DD borrowed shares from HH on its behalf and repaid it to HH on its behalf, and that DD was a donation equivalent to the above funds for acquiring shares. However, DD on the balance sheet did not include the above amount of funds for acquiring shares as a loan, there is no evidence to deem that DD paid it as a provisional payment to HH. The Plaintiff’s assertion that DD donated the amount of funds for acquiring shares for the Plaintiff’s old age and livelihood is difficult to easily obtain, as well as there is no evidence to support the Plaintiff’s claim that DD donated the amount of funds for acquiring shares in its own name (On the other hand, it is reasonable to view that the Plaintiff asserted that the Plaintiff borrowed shares from HH on its claim at the time of the judgment of the Tax Tribunal and the complaint of this case, and the preparatory brief dated 5, 2017, and that it was not consistent with the Plaintiff’s claim that the above amount of funds for acquiring shares was transferred from the representative director of HH on September 5, 2017.

B) Next, on June 11, 2012, the Plaintiff acquired 7,000 shares out of 40,00 shares of the instant company (DD’s shares held in title trust to FF) 14,00 shares out of 40,00 shares of the instant company (2,00 shares acquired in title trust to the Plaintiff again on May 13, 2010, and 12,00 shares) equivalent to 35% of the Plaintiff’s shares of the instant company out of the JJ’s shares out of 11, 200 shares. According to the merger contract, the Plaintiff acquired 7,00 shares out of 20,00 shares that were newly issued by the instant company following the merger merger with JJ, and the Plaintiff was not entitled to 7,00 shares out of 70,00 shares of the instant company’s shares that were subsequently withdrawn from 700,000 shares of the instant company’s shares out of 300,000 shares of the instant company’s shares.

C) In addition to the above 3,50 shares of 3,00 shares, the company of this case issued 10,000 shares through capital increase with 10,00,000 shares on June 13, 2014, and at the time of the issuance of 10,00 shares, the company of this case purchased 30,00 shares for each share of 3,50 shares (3,500 shares for 3,500 shares, LL 3,000 shares, and 3,000 shares for 1,00,50,000 shares for 1,00,000 shares for 3,00 shares for 1,00 shares and 00 shares for 1,00,000 shares for 3,00 shares for 1,00 shares for 30,000 shares for 1,00 shares for 30,000 shares for 30,00 shares for 2,00 shares for 300 shares for .

2) Whether there exists a purpose of tax evasion

A) The legislative purport of Article 41-2(1) of the Gift Tax Act is to effectively prevent the act of tax avoidance using the title trust system and realize the tax justice. Thus, the application of the proviso to Article 41-2(1) is possible only if the purpose of tax avoidance is not included in the purpose of the title trust, and if it is deemed that there was an intention of tax avoidance not only the other purpose but also the intention of tax avoidance, it may not be limited to the gift tax under the proviso. In this case, the burden of proving that there was no intention of tax avoidance in the title trust, and that there was no other purpose than the purpose of tax avoidance. However, the nominal owner who bears the burden of proving that there was no objective of tax avoidance in the title trust, must prove that there was an obvious purpose of tax avoidance without relation to the tax avoidance to the extent that it is deemed that there was no purpose of tax avoidance in the title trust, and that there was no tax avoidance at the time of the title trust or in the future.

B) In light of the above legal principles, the following circumstances, i.e., DD established HH (i.e., civil engineering, civil engineering, civil engineering, inspection, inspection, analysis, etc., from August 2001 to August 24, 201, which were deemed as its representative director by comprehensively taking account of the overall purport of the arguments set forth in No. 10 to No. 200 as to this case’s health, evidence as seen earlier, and evidence No. 10 to 12, and No. 80 as to this case’s shares, and that DD was likely to be restricted from bidding at one site of the above company’s representative director. However, it is difficult to view that there was a lack of objective of tax avoidance and 20G dividend to the extent that the Plaintiff had no objective of tax avoidance, and that there was no possibility of 10D’s annual increase in dividend income for 20 years from the date of 20D’s annual increase in 200-year income tax base.

3) (1) Whether there is an error in the deemed donation date of port stocks

A) Even if Article 45-2(3) of the Inheritance Tax and Gift Tax Act intends to avoid taxes by stating the name of the owner of stocks, etc. differently from the actual owner on the statement, etc. of change of stocks, etc., even if the change of ownership is not made due to the lack of the shareholder registry or employee registry itself, gift tax is intended to be imposed by supplementing the problems in which the main sentence of Article 45-2(1) of the Inheritance Tax and Gift Tax Act cannot be applied. However, the foregoing provision only provides for the determination of the change of ownership based on the statement, etc. submitted to the head of the tax office having jurisdiction over the place of tax payment, and does not provide for the specific date as to which the date is deemed as the donation of stocks, etc. in accordance with the statement, etc. of change of stocks, etc... In addition, even if the tax authority can utilize the statement, etc. as taxation data, this is merely a document recording the change of stocks, etc. during the business year as part of performing a duty of cooperation for tax purposes. In addition, the statement of change of stocks, etc.

B) We examine the following circumstances, i.e., at the time MM acquired 12,00 shares of the Plaintiff on January 19, 2006, and at the time of the Plaintiff’s acquisition of shares from MM on July 15, 2008, it appears that the transfer of ownership was impossible due to the lack of the shareholder registry of the instant company at the time of the Plaintiff’s acquisition of the above shares (the Plaintiff asserted that the above documents were the shareholder registry of the instant company based on the evidence Nos. 4 through 6, and No. 3, but all of the above documents cannot be deemed the shareholder registry of the instant company, and since the shareholder registry of the instant case was not submitted by the date of closing of argument after the investigation of the instant case, the Plaintiff’s assertion cannot be accepted since it was not submitted by the date of closing of argument after the date of donation). Therefore, it cannot be viewed that DDA was deemed as the date of donation transfer of shares to “the date of title trust,” and that the Plaintiff and the Plaintiff’s transfer of shares cannot be deemed as the Plaintiff’s shares.

4) Whether any error exists in the valuation method of donated property

A) Article 45-2 of the Gift Tax Act provides that, in cases where the actual owner and the nominal owner are different from each other, the value of the relevant property shall be deemed to have been donated to the actual owner on the day when the registration is made, etc. as the nominal owner. Article 60(1) of the same Act provides that the value of the property on which gift tax is levied under this Act shall be based on the market price as of the date of donation. Paragraph (2) of the same Article provides that the market price shall include the value generally recognized as being established when transactions are made freely between many and unspecified persons and recognized as the market price, as prescribed by Presidential Decree, such as the expropriation price, public sale price, and appraisal price. In addition, Article 63(1)1(c) of the same Act provides that the market price cannot be calculated in accordance with the method prescribed by Presidential Decree (hereinafter referred

B) Comprehensively taking account of the purport of the oral argument in the statement in Eul evidence No. 9, the defendant calculated the appraised value per share of 12,00 won on January 10, 2012 as 25,946 won on the base date of appraisal, and the value of donated property of 311,352,200 won (=25,946 won x 12,000 won). In addition, with respect to the shares of 7,00 won, the defendant calculated the appraised value per share of 20,626 won on June 11, 2012 according to the supplementary evaluation method, based on the base date of appraisal, as 14,382,00 won on the value of donated property of 144,382,00 won (=20,626 won x 7,00 won on the value of donated property of 3,500 won on the value of donated property of 3,500 won on the basis of supplementary evaluation method (= 3037, 1304.7.138

C) The following circumstances are reasonable to view that the market price of the Plaintiff’s shares was 0.0 billion won or more than 0.3 billion won in the event that the market price of the shares was 0.0 billion won or more than 0.3 billion won in the event that the market price of the shares was 0.0 billion won or more than 0.3 billion won in the event that the market price of the shares was 0.0 billion won in the above shares, the market price of the Plaintiff’s shares was 0.6 billion won in the above shares, and the market price of the shares was 0.0 billion won in the above case that the Plaintiff’s shares was 40.6 billion won in the above shares, and it cannot be viewed that the market price of the shares was 0.0 billion won in the above case where the Plaintiff’s shares was 0.0 billion won in the above shares and the shares were 0.0 billion won in the above case, and thus, it cannot be viewed that the market price of the shares was 0.0 billion won in the above case of the shares acquired shares.

This part of the assertion is without merit.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.