(영문) 대전지방법원 2012.10.31.선고 2011구합3137 판결

2. Of the costs of lawsuit, the part resulting from participation by the Intervenor shall be borne by the Intervenor, and the remainder shall be borne by the original cost.

Purport of claim

The Defendant’s disposition of imposition of gift tax of KRW 1,361, 317, 00 on April 5, 2010 against the Plaintiff (hereinafter “Plaintiff”) and KRW 12,016, and 695 on October 6, 2010 is revoked.

Reasons

1. Details of the disposition;

A. On August 9, 1996, Y0 acquired 1, 037 m2, and 11 m2,095 m2 (hereinafter “the instant forest”) in Cheongdong-dong, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, and paid only 15 billion won (1.2 billion won on June 7, 2006, 1.2 billion won on September 7, 2006, 196, 2.3 billion won on September 5, 2006, 200 billion won on the remaining 1.5 billion won on October 31, 2008, but did not pay the final return on September 1, 2005, 30 billion won on September 2, 2006, 1.3 billion won on the remainder of 1.5 billion won on February 2, 2007, 1.5 billion won on October 31, 2008, respectively.

B. Meanwhile, from November 21, 2007 to November 22, 2009, 100 Won 6,328, 300, and 00 Won from November 22, 2009, to the Hyundai Securitiescheon Branch Account in the Plaintiff’s name, including the sale price of the instant forest.

In addition, the Plaintiff purchased 8,340 shares from November 21, 2007 to November 23, 2007, 403,703 shares from October 31, 2008 to December 29, 2008, and acquired 412,00 shares listed on KOSDAQ-listed 00 shares (hereinafter “instant shares”).

C. On April 9, 2010, the Defendant rendered a disposition of KRW 1, 361, 317, and 00 on the Plaintiff on the following grounds: (a) on the ground that 00 included the part to be deemed as the time of donation on October 6, 2010 among the initial disposition of KRW 1,361, 317, and 00, the Plaintiff imposed a gift tax of KRW 1,358, 975, 643; (b) on the Plaintiff on the ground that the first disposition of KRW 1,361, 361, 317, and 00 should be deemed as the time of donation; and (c) on the ground that the first disposition of KRW 1,361, 317, and 643, respectively, imposed a gift tax of KRW 12,00 for the year 207; and (d) on the remaining part to be imposed on KRW 36,585,201.

[Grounds for Recognition] Each entry of the facts without dispute, Eul evidence Nos. 1, 2, and 4 through 6 (with a number of branches, 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 receive title trust of the instant shares from 100, but entered into a private investment agreement with 100, and received an investment of the stock acquisition fund. However, the Plaintiff’s investment from 100

The instant disposition based on the premise that the instant shares were held in title trust is unlawful.

(2) Even if the Plaintiff received the title trust of the instant shares from HaO, the instant disposition was unlawful, since there was no purpose to avoid taxes.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

(1) As to whether the Plaintiff obtained title trust of the instant shares from 00

In addition to the above evidence, the plaintiff's 0th 1st 0th 1st 6th 0th 6th 0th 0th 0th 0th 0th 0th 0th 0th 0th 0th 0th 0th 00 0th 0th 0th 00 0th 0th 00 0th 0th 0th 00 0th 00 0th 00 0th 00 0th 00 0th 000 0th 00 0th 000 0th 00 0th 000 0th 00 0th 00 0th 00 0th 00 0th 00 0th 00 0th 00 0th 200 th 00 th 00 th 6th 00 th 200.

(2) As to the existence of the purpose of tax avoidance

The legislative intent of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010) is to recognize an exception to the substance over form principle to the effect that the act of tax avoidance is effectively prevented and the tax justice is realized by effectively preventing the act of tax avoidance using the title trust system, and only if the purpose of the title trust is not included in the purpose of the tax avoidance, it can be applied to the proviso of the same Article, and in such a case, the burden of proving that the purpose of the tax avoidance was not included in the purpose of the title trust has the burden of proving that there was no purpose of the tax avoidance. However, the burden of proving that there was no purpose of the tax avoidance can be proved by

In title trust, the nominal owner, to the extent that it is recognized that there was no tax avoidance purpose in the title trust, has been an obvious purpose irrelevant to the tax avoidance, and must prove that there was no tax to be avoided at the time of the title trust or in the future, to the extent that the ordinary person would not have the intention of tax avoidance (see Supreme Court Decision 2004Du11220, Sept. 22, 2006, etc.).

With respect to this case, the Plaintiff agreed to pay the transfer income tax on the transfer of the forest of this case on behalf of Kim 00, and the total appraised value of the real estate held by Y0 at that time exceeds the delinquent tax amount. As such, the title trust of the shares of this case did not have any purpose of tax avoidance. However, the above circumstance cited by the Plaintiff is insufficient to recognize that the title trust of this case did not have any objective of tax avoidance, and there is no other evidence to acknowledge this differently. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

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