Seoul Administrative Court 2008Guhap50193 ( August 13, 2009)

National High Court Decision 2007Du4944 (Law No. 26, 2008)

Whether shares are held in title trust or not

In a case where share price has been paid, only the nominal borrower who actually subscribed shares and paid such price shall become a shareholder as a de facto underwriter, and in full view of various circumstances, the plaintiff shall be deemed to have held a title trust.

The contents of the decision shall be the same as attached.

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. Each disposition of KRW 146,847,120 on September 3, 2007 against the Plaintiff by the Defendant and KRW 48,956,850 on September 5, 2007 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as stated in the reasoning of the judgment of the court of first instance, except for adding the following judgments with respect to the matters asserted by the plaintiff in the court of appeal. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

Even if KimA held the title trust of the shares in question to the Plaintiff, as can be seen in the agreement, it is clear that the period of service of the Plaintiff 1,2 corporation is calculated, and it is made for the purpose of enhancing the contribution to the Plaintiff 1,2 corporation. The title trust of the shares in question does not change the status as an oligopolistic shareholder to the first corporation of KimA due to the title trust of the shares in question. In addition, the first and second corporations did not intend to withdraw from the first and second corporations around October 2003 and distribute shares to the shareholders until they waived their shares. Thus, the purpose of tax avoidance cannot be deemed to exist. Thus, the disposition of this case is unlawful since it constitutes "the case where the property was registered in another person's name without tax avoidance purpose" under Article 41-2 (1) 1 of the Inheritance Tax and Gift Tax Act (amended by Act No. 7010 of Dec. 30, 2003).

The legislative purport of the provision on the constructive gift of title trust property is to recognize an exception to the substance over form principle to the purport that the tax justice is realized by effectively preventing the act of tax avoidance using the title trust system. As such, the burden of proving that the purpose of the title trust is not included in the purpose of the tax avoidance is applicable only to the case where the purpose of the tax avoidance is not included, and in such a case, there is a person asserting it. Therefore, the burden of proving that there was no other purpose of the tax avoidance may be proven by means of proving that there was no other purpose of the tax avoidance. However, the nominal owner who bears the burden of proving the burden of proof has an obvious purpose irrelevant to the tax avoidance to the extent that it is recognized that there was no objective of the tax avoidance in the title trust, and the fact that there was no tax avoidance at the time of the title trust or at the time of the future, must be proven to the extent that it is not an ordinary doubt (see, e.g., Supreme Court Decision 2004Du1120, Sept. 22, 2006).

According to the plaintiff's evidence No. 4-1 (Agreement), if the purpose is to increase the contribution ratio to the plaintiff's 1 and 2 corporations, the plaintiff's share price for the 1 and 2 corporations, such as the agreement, shall be paid by KimA, and the plaintiff's annual performance of the business of the 30 billion won or more during the service period of 5 years or more, shall not be deemed to have been recognized as the plaintiff's ownership of the above shares, and if the above conditions are satisfied, it shall be determined that the 30 billion won or more will be transferred to the plaintiff. In other words, if the plaintiff works less than 5 years, the plaintiff will transfer the trusted shares without compensation to KimA, and if the plaintiff's contribution to the 1 and 2 corporations is to increase the amount of contribution to the 1 and 2 corporations, the plaintiff's share price for the 1 and 2 corporations is not sufficient to recognize that the above shares will not be subject to the above tax evasion purpose, and there is no reason to acknowledge that the above shares were not subject to the above tax avoidance purpose.

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, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.