Cho High-2016-west-3104 ( October 28, 2016)

The data submitted by the Plaintiffs alone reverse the factual basis established in the preceding judgment, and the beneficial shareholder of the instant shares cannot be recognized differently.

Unless there exist any special reasons, the facts acknowledged in a final and conclusive judgment shall not be dismissed as it serves as sufficient evidence in relation to the relevant case, and since the materials submitted by the plaintiffs alone are back to the factual basis established in the preceding judgment and cannot be recognized differently as the actual shareholders of the instant shares, the plaintiff's claim shall be dismissed

Donation of title trust property under Article 41-2 of the Inheritance Tax and Gift Tax Act

2017Guhap52320 Revocation of Disposition of Imposing gift tax

AA et al.

The head of Dongjak Tax Office and six others

November 24, 2017

January 26, 2018

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The Defendants’ imposition of each gift tax on Plaintiff BB, CCC, DD, EE, FF, GG, HH, and J as shown in the separate sheet No. 1, and each joint and several taxpayers’ designation notification given to Plaintiff A shall be revoked.

1. Details of the disposition;

A. Between November 30, 200 and December 5, 2000, the rest of the plaintiffs except the plaintiff A and the plaintiff A (hereinafter referred to as the "the plaintiffs") prepare a share transfer agreement for the acquisition of shares in the separate sheet No. 1 (hereinafter referred to as "the shares in this case") that the remaining plaintiffs acquire each share in the separate sheet No. 1 (hereinafter referred to as "the shares in this case") among the shares issued by KK Co., Ltd., an unlisted corporation owned by the plaintiff A, the non-listed corporation owned by the plaintiff A (hereinafter referred to as the "non-party company"), and completed the transfer procedure under the remaining plaintiffs' names on December 22, 2000 (hereinafter referred to as the "transfer of the title of this case").

B. Around July 2015, the director of the North Incheon District Tax Office conducted an investigation of changes in stocks of the non-party company (hereinafter “instant tax investigation”). On December 22, 2000, Plaintiff A, while failing to pay a national tax of approximately KRW 00 million to the non-party company, deemed that the shares of this case owned were nominal in trust with the remaining Plaintiffs, and notified the Defendants of the taxation data.

C. The Defendants applied Article 14-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6301 of Dec. 29, 2000), which is a provision on the constructive gift of title trust property to the rest of the plaintiffs as indicated in the separate sheet No. 1 list, and designated and notified the gift tax (hereinafter referred to as the “instant disposition”), and the Plaintiff A as the joint taxpayer (hereinafter referred to as the “instant designated disposition”), and designated and notified the Plaintiff A as the joint taxpayer (hereinafter referred to as the “instant disposition”).

D. At around 197, the Plaintiffs asserted as follows: (a) the Plaintiff: (b) did not have self-sufficiency in 1997 and raised the cost of the Plaintiff AA’s lawsuit for the return of shareholders’ rights from the remaining Plaintiffs; and (c) paid in lieu of the Nonparty Company’s stocks; and (d) filed an objection on March 4, 2016, against the instant disposition; (b) but was dismissed on April 21, 2016.

E. The Plaintiffs filed an appeal with the Tax Tribunal on July 29, 2016, and the Tax Tribunal dismissed on October 28, 2016.

Facts that there is no dispute over the basis of recognition, Gap evidence 1, Eul evidence 1 through 5 (including each branch number in the case of additional number) and the purport of the whole pleadings.

2. Determination as to the defendants' main defense

The Defendants asserted that there is no benefit of lawsuit to seek revocation of the designation of the aforementioned Plaintiffs as joint and several taxpayers in the instant designated disposition, since the gift tax imposed on Plaintiff BB, CCC, DD, GG, HH, and J was paid and the joint and several tax liability of Plaintiff AA terminates.

However, since the above plaintiffs asserted that the disposition of this case was unlawful and sought its revocation, the part of the lawsuit of this case, which seeks revocation of the disposition that designated the plaintiff AA as a joint and several tax obligor against the above plaintiffs, is still the benefit of lawsuit. The defendants' defense of this safety cannot be accepted.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

Plaintiff AA owned 50% of the shares of Nonparty Company under the name of another person. On September 15, 1998, ABC, the other 50% of the shares of Nonparty Company, died, and the title trustee claimed that the title trustee is his actual owner. Plaintiff A brought a lawsuit against the title trustee, etc. on May 3, 1999. Since Plaintiff A was insolvent at the time of the said lawsuit, Plaintiff A agreed to transfer the shares to be recovered to the related parties, such as both children of Plaintiff AA, and delegated all the litigation-related days, such as raising litigation costs. Accordingly, Plaintiff A’s disposal was conducted by the title truster and the title truster’s heir at the time of the said lawsuit, and the acquisition price necessary to take over 50% of the shares of Nonparty Company, which were 50% of the shares of Nonparty Company, was used as the operating funds of Nonparty Company. Plaintiff A’s acquisition of the shares of this case under the name of the title truster and the remaining shares of Plaintiff A, which were registered under the name of the title truster, was also unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) In around 1988, Plaintiff A and most of the shares of the non-party company were acquired with ABC, and title trust was held by the other party. After ABC died, Plaintiff A asserted that the title trustee is the beneficial shareholder. Plaintiff A around 1999 against the above title trustee and the non-party company, the shares of OOOOO/OOOOOOO, bdd, and bd, and e, each of the shares in the name of BC and the shares in the name of BC (hereinafter referred to as “the lawsuit seeking confirmation of shareholder rights”) was filed and the lawsuit was finalized on April 12, 2000.

2) According to the 2000 shares changes of the non-party company, after the above judgment, the plaintiff AA acquired the OOO shares of the non-party company among the total issued shares of the non-party company from the existing shareholders. The above OOO shares were transferred to the remaining plaintiffs, Cx (OO shares) and Dx (OO shares) on December 22, 2000.

3) From July 24, 2003 to September 30, 2009, XBB, a representative director of the non-party company, delegated the non-party company's business management and shares management body to the non-party company's capital gains. On April 3, 2002, JJ and CCC changed the shares of the non-party company's company's name to XB's name. The above shares were OOB's shares after capital reduction, etc. The above shares were transferred to the non-party company's company's MPB (hereinafter referred to as "MM"), and the actual owner of the non-party company was convicted of the non-party company's capital management and shares management body. Accordingly, XB received the judgment of the court of appeal on July 17, 2009 from the non-party company's company's company's company's company's company's company's company's capital gains to the non-party company's capital gains.

4) In the preceding criminal case, Xbb claimed that the said OOO owner was his/her own ownership, and thus, the issue was whether the owner was his/her owner was the one. The party at the same time appeared as a witness and testified that corresponds to the facts constituting a crime.

5) The preceding criminal judgment was rendered on January 11, 2013 by the non-party company as the victim. On April 13, 2012, after the judgment of the preceding criminal case became final and conclusive, the non-party company filed a claim for damages from embezzlement of the transfer price of stocks against XB on April 13, 2012, but the non-party company cannot be deemed to have caused damage to the non-party company on the ground that the non-party company is not a beneficial shareholder, and as the non-party company is not in a de facto or de facto consignment relationship with XB as it is not a beneficial shareholder, it cannot be deemed that the damage to the non-party company was caused to the non-party company on January 11, 201

6) The Plaintiff asserted that he was the beneficial shareholder of his shares, and filed a lawsuit against XB for compensation for damage due to embezzlement of the transfer price of shares against the beneficial shareholder of his shares. In the above case, XB claimed that the beneficial shareholder of the shares of the non-party company was an entity other than the Plaintiff AA. In fact, XB claimed that the shares of the non-party company were an entity that is not the Plaintiff AA, and in the investigation process regarding XB’s embezzlement of the transfer price of shares, there was an enemy stated that the shares of the non-party company were actually owned, and the Plaintiff AA also prepared and delivered to the non-party AA a letter of confirmation that the shares of the non-party company and all management rights of the non-party company were transferred to the entity that is both children.

The court stated that "the actual owner of the shares is the plaintiff A and the actual owner of the shares was the owner of the shares in the investigation process, and that the plaintiff was fully delegated the management of the non-party company to the non-party company." The court held that according to the testimony at the work-level, the plaintiff A was a beneficial shareholder who owns most of the shares of the non-party company, and sentenced to the judgment citing the plaintiff AA's claim on October 25, 2013 (hereinafter referred to as "prior civil judgment" and the above case was referred to as "prior civil case"), and the above judgment was finalized after the appellate court and the final appeal.

7) In the course of the instant tax investigation, a principal borrowed money from the rest of the plaintiffs, Cxx, and Dxx to raise funds for the refund of shareholders' rights of the non-party company on behalf of the plaintiff AA on behalf of the plaintiff AA in 1997. After winning the lawsuit, the non-party company was entrusted with all management of the management and shares of the non-party company, and paid money to the borrower as a substitute for the shares on behalf of the plaintiff AA (hereinafter referred to as the "the instant confirmation").

8) Plaintiff BB is Plaintiff AB’s dead money (the Plaintiff’s father’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her mother.

Plaintiff DD is the finding of the relevant job, and Plaintiff EE and FF is the subject of the relevant work, Plaintiff HH is the form of the relevant work, Plaintiff HH is the subject of the relevant work, and Plaintiff GG is the subject of the relevant work.

Facts without dispute over the basis of recognition, Gap evidence Nos. 4, Eul evidence Nos. 2, 6 through 8, 13, and 17 (including each number), each statement and the purport of the whole pleadings.

D. Determination

1) The facts acknowledged in a final and conclusive judgment are significant evidence as to the relevant case, unless there exist any special reasons, and even in a case in which res judicata does not extend, there are circumstances to deem that the judgment is the result of an inappropriate performance of the party’s lawsuit, or that the judgment is the result of an inappropriate performance of the party’s lawsuit after the judgment is rendered (see, e.g., Supreme Court Decisions 2003Du360, Oct. 7, 2005; 2003Du377, Oct. 7, 2005).

2) The preceding criminal judgment is most beneficial shareholders of the shares of the non-party company, and the relevant work-level is deemed to have been delegated only to the management of the non-party company and the management of the shares by the non-party company. In the preceding civil case, the issue was whether the beneficial shareholder of the non-party company is the plaintiff A or the relevant work-level was determined. As in the preceding criminal judgment, as in the preceding criminal case, the judgment citing the claim for damages by the plaintiff A on the ground that the non-party company is a beneficial shareholder was rendered and finalized. Therefore, in order to reverse the relationship that became final and conclusive in the preceding criminal and civil judgment (hereinafter referred to as the "prior criminal judgment") in the instant lawsuit, and to recognize that the beneficial shareholder of the shares of this case is a project-level shareholder

3) In the instant case, the testimony at the most direct evidence, which corresponds to the Plaintiffs’ assertion that the beneficial shareholder of the instant shares is a trade-related class, is first examined.

The Ministry of Trade, Industry and Energy appeared as a witness in the instant case and stated that the pertinent shares were actually transferred by Plaintiff AA in return for the litigation cost of a stock return lawsuit and for the payment of the funds for the operation of the non-party company, and that he was registered in the register of shareholders of the non-party company in the name of the other plaintiffs on December 22, 200."

However, in the criminal investigation process of a prior criminal case, although the same was recorded as the beneficial shareholder, the plaintiff A had reversed the statement as the beneficial shareholder (in this regard, the relevant work at the stage of a criminal investigation was prepared by the complaint letter (Evidence A6) indicating that the actual owner was the actual owner, and then the plaintiff A made a complaint with the beneficial shareholder of the plaintiff A as he/she would be subject to the six-month limitation period limit in case of filing a complaint against XB, who is a pro-born child, according to relative precedent). In the trial process, the plaintiff A was present as a witness and testified corresponding to the criminal facts in which the plaintiff AA was a beneficial shareholder. In addition, in the previous civil case, the plaintiff A was present as a beneficial shareholder and testified that he/she was entrusted with the management of the non-party company and the management of the shares of the non-party company was entrusted by the plaintiff A on the premise that the plaintiff A was a beneficial shareholder. In the tax investigation of this case, the plaintiff A submitted the confirmation document of this case.

Therefore, the aforementioned testimony made in this case is not only inconsistent with the testimony made by Plaintiff AA as a beneficial shareholder in the trial of the preceding civil case, but also inconsistent with the testimony made by Plaintiff AA in the preceding criminal case, and in addition to the circumstances, such as the fact that the document prepared by the Plaintiff A is inconsistent with the confirmation prepared by him in the course of the investigation of this case, and that the same is closely related with that of Plaintiff AA in fact, the testimony made in such a commercialization cannot be recognized as credibility.

4) Other evidence shown as consistent with the plaintiffs' assertion that the beneficial shareholder of the instant shares is an employee at the same time, the agreement on the transfer of business assets of the non-party company operated at the same time (Evidence A2), the confirmation document and receipt (Evidence A3-1-3-2), the plaintiff DD established a collateral security on the non-party company's real estate (Evidence A-4), the certificate of partial registration of the non-party company's company (Evidence A-5), and the statement that the non-party company's shares were owned by the non-party company's representative director at the non-party company (Evidence 6-2), the plaintiff's wife at the real estate auction around January 200, and the statement that the purchase price was paid by the non-party A-party company at the same time as an employee at the same time (Evidence 1-3-1-3), and the statement that the non-party company's shares were transferred to the non-party company's owner at the same time under the name of the non-party company's claim for restitution 90-1-3-2-3.

However, in full view of the following circumstances revealed by comprehensively taking account of the facts acknowledged earlier and the purport of the entire pleadings, each of the above evidence alone is insufficient to recognize that the pertinent case is a beneficial shareholder of the instant shares at the time of the transfer of title. There is no evidence to acknowledge otherwise.

A) The evidence No. 2 is not sufficient to prove the authenticity of the transferee’s stamp image portion, and the testimony at a stage of a lawsuit seeking the return of shareholder’s rights, consistent with the plaintiffs’ assertion that the sale price as described above was used as the litigation cost of the lawsuit seeking the return of shareholder’s rights, and it is difficult to believe that the testimony at the stage of a lawsuit seeking the return of shareholder’s rights is difficult for the same reason as mentioned above. The evidence No. 3-1 (a factual confirmation prepared by the AZ) also is the wife of the plaintiff AA,

B) All of the evidence Nos. 4 and 7-1 and 2 are related to the circumstances after July 2009 in which the beneficial shareholder was at issue in the preceding precedents, and Plaintiff A owned the property under the name of another person, and in addition to the facts that Plaintiff A had been recognized in the preceding decisions that Plaintiff A delegated the management of Nonparty A’s company’s business and the management of shares to Nonparty A., each of the above evidence is insufficient to prove that the beneficial shareholder was at the time of transfer of entry of this case.

C) According to the statement in Gap evidence No. 5, from July 24, 2003 to November 30, 2014, the fact that Xff, which is an son of the work at a Xbb, the work at the work at the creation of a class, is recognized as the representative director of the non-party company in the order of priority. This is not inconsistent with the facts of prior precedents that recognized that the work at the creation of a class was operated by the non-party company with the delegation of the plaintiff AA. This is not contrary to the facts of prior precedents that recognized that the work at the creation of a class was operated by the non-party company upon the delegation of the plaintiff AA. This also applies to Gap evidence No

D) The Plaintiffs asserted that the actual owner of the shares embb’s embezzlement of the transfer price submitted a complaint (Evidence A 6) to the investigation agency of the preceding criminal case, and that the same statement had already been made at the investigation agency in the preceding civil case. As such, the evidence No. 6 cannot be deemed a new evidence.

E) According to the statement in Gap evidence No. 10, V, who was employed by the non-party company, claimed that the non-party company donated its nominal shares to the commercial class and Xff on September 19, 2008 by coercion, and that the company filed a claim for the return of shares against the commercial class and Xff. This is not inconsistent with the facts of the preceding precedents that the plaintiff AA delegated all the management of the non-party company and the management of shares to the non-party company.

5) Ultimately, since the evidence submitted by the Plaintiffs alone leads to the factual basis established in the preceding decisions and the beneficial shareholder of the instant shares cannot be deemed to be a trade-level position, the Plaintiffs’ assertion cannot be accepted.

4. Conclusion

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