Early High Court Decision 2008 Superintendent0190 (Law No. 86, 19, 2008)

It is not easy to reject the value of the certificate, and it does not constitute the identity theft.

In full view of the fact that it is difficult to readily reject the value of evidence of a written confirmation, barring any special circumstance, if a person liable for duty payment prepares a written confirmation of details, it is insufficient to deem that he/she acquired stocks by stealing the name, but it is not possible to retroactively apply the provision to determine the transfer by the detailed statement

208Guhap37992 Imposition and Disposition of Gift Tax

RedO 5 persons

2 others such as the head of the Goyang Tax Office

May 17, 2012

August 23, 2012

1. The plaintiff 100's lawsuit shall be dismissed.

2. The imposition of each gift tax on the part of the Plaintiff Hong 00 which exceeds KRW 00 of KRW 1, 200, KRW 000 for the year 200, KRW 000 for the year 2001, KRW 000 for the year 2002, KRW 000 for the year 200, and KRW 00 for the year 200 for each, and KRW 00 for the year 200 for the year 2003, and KRW 00 among KRW 00 for the year 200 for each, shall be revoked.

3. The imposition of gift tax on the portion exceeding KRW 00 out of KRW 00, and KRW 00 out of KRW 00,000 for the portion exceeding KRW 00 for the year 200 as of December 1, 2007, each of which was made by the head of the defendant Gangnam District Tax Office as of December 3, 2007, and KRW 00 for the year 2001, KRW 00 for the year 2002, KRW 00 for the year 200, and KRW 00 for each of the 2000 for the year 203, and KRW 00 for each of the 200 for the year 200.

4. As to the plaintiff Goyang Tax Office's 1st December 2007, and as to the 200th 1st 200.

Each gift tax disposition on the parts exceeding 00 won, 000 won for the year 2001, and 000 won for the year 2002, 000 won for the year 2002, and 000 won for the year 2003, and 000 won for each, shall be canceled.

5. Each disposition of gift tax on the part above 00 won among the part of the plaintiff Goyang Tax Office's 1 December 2007, each of which exceeds 00 won, 00 won, 000 won, 000 won, 000 won, 000 won, and 000 won, and 000 won for 2000 won for 2003, and 000 won for 200 won shall be revoked.

6. Each of the claims by Plaintiffs red00, Park 00, and Park 00, and Park 00, and claims by Plaintiffs Park 00.

7. Of the costs of lawsuit, 19/20 of the portion arising between the Plaintiff Hong 00 and the Defendant Koyang Tax Office is 00, and the remainder is 19/20 of the portion arising between the Plaintiff Goyang Tax Office and the Defendant Goyang Tax Office, and the remainder is 00 of the part arising between the Plaintiff Goyang Tax Office and the Defendant Goyang Tax Office, and the remainder is 19/20 of the portion arising between the Plaintiff Goyang Tax Office and the Defendant Goyang Tax Office. The remainder is 00, and the remainder is 9/10 of the portion arising between the Plaintiff Goyang Tax Office and the Defendant Goyang Tax Office, and 9/10 of the portion arising between the Plaintiff Goyang Tax Office and the Defendant Goyang Tax Office is 00, and the remainder is 00 of the portion arising between the Plaintiff Goyang Tax Office and the Defendant Goyang Tax Office.

The head of the tax office shall:

① As regards Plaintiff Hong 00, each of the period between December 1, 2007 and that between year 200.

Each gift tax of KRW 00, KRW 00 for the year 2001, KRW 000 for the year 2002, KRW 000 for the year 200, and KRW 000 for each 2003, KRW 000 for the year 2003, and KRW 000 for the year 200, and KRW 00 for the year 2004.

② The assessment of the gift tax of KRW 00 for the Plaintiff Park 00, and KRW 000 for the year 200 as of December 1, 2007, each of which was made on December 3, 2007 by the head of the Defendant Gangnam District Tax Office, and KRW 00 for the year 200, KRW 00 for each of the 2002, KRW 00 for the year 200, KRW 000 for the year 200, and KRW 00 for each of the 2003, KRW 00 for the year 200, and KRW 00 for the year 204, and KRW 00 for the year 204.

③ The assessment of the gift tax on the Plaintiff’s Goyang Tax Office in 200, while on December 1, 2007, 000 won for the year 200, 000 won for the year 2001, and 000 won for each 2002, 000 won for the year 2003, and 000 won for each 2003, 000 won for the year 2003, and 000 won for the 2000, and 000 won for the year 204.

④ Each disposition imposing gift tax of KRW 00, KRW 00, KRW 000, KRW 000, KRW 000, and KRW 000, and KRW 000, for each 2003 year, for which the head of the Highyang Tax Office was to effect on December 1, 2007, and KRW 00,00, KRW 00, and KRW 00, for each 2003 year.

⑤ The assessment of gift tax of KRW 00, KRW 00, KRW 000, KRW 000, and KRW 000, and KRW 000, and KRW 000, respectively, for which the head of the Sinsan Tax Office made on November 2, 2007 with respect to Plaintiff 1 and December 1, 2007, respectively, is revoked, and the imposition of gift tax of KRW 00 and KRW 000, respectively, as of December 1, 2007, by the head of the Sinsan Tax Office.

1. Details of the disposition;

A. Park 00 was operated in Changwon for about 20 years by about 0000 corporation (hereinafter referred to as "the '' '000'), which is engaged in housing construction business, and the 0000 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the '' was' did not pay the 'the 'the 'the 'the 'the 'the 'the ''' debts for the 'the 'the 'the 'the 'the 'the 'the ''' ' the ' the 'the '' ' the 'the 'the 'the 'the 'the ')

B. Around March 2000, 2000 had established a corporation (hereinafter referred to as "000") with a construction project including a small-scale officetel implementation project from around 2001.

(c)The initial capital of 000 won was 000 won, and the capital was 000 won in total by offering capital increase over six times from December 27, 2001 to December 14, 2004, as stated in the Statement of Change of Stocks, etc., in order to meet the requirements for construction business licenses and the debt ratio for government-funded construction projects.

D. From March 2002 to December 12, 2003, Park 000 acquired the management right of a stock company of 00000 (hereinafter referred to as '0000') from Kim 000, etc., and attached Form 3 in order to meet the construction business license, etc., as shown in the statement of changes in stocks, etc. on December 26, 2002 to December 26, 2002 and became 00 won in capital by offering capital through two times in total as shown in the statement of changes in stocks, etc.

E. From January 23, 2007 to July 27, 2007, the director of the Central District Tax Office notified the Plaintiffs, who are title trusters of the gift tax assessment results, on the basis of the corporate tax integration investigation of 0000 and 0000, and on the end of November 2007, 2007, the Plaintiffs leased their names to 00, and 00, on the ground that they are beneficial shareholders who borrowed their names, and 'the total shares of 000 and 0000' (hereinafter referred to as 'each shares of this case') were subject to the assessment amount of each shares of 00 and 0000 (hereinafter referred to as 'the shares of this case') and accordingly, the Defendants made a disposition of gift tax reduction under the provisions of each of the former Inheritance Tax and Gift Tax Act (amended by Act No. 828, Dec. 31, 2007; hereinafter referred to as 'the shares of this case'.

F. The plaintiff Hong 00, Park 00, Park 00, and Park 00, and Park 00 are dissatisfied with each of the dispositions of this case.

A request for review was made by the Board of Audit and Inspection on February 2008, and it was dismissed on June 19, 2008.

Facts that there is no dispute over the grounds for I Recognition, and evidence Al through 12 (if there is a natural disaster, each number;

(b) the entry of the Parties 1 through 20, and the entry of the Parties 1 to 20, the original point of this Court 0000, the original point of 000 banks, the branch of Gyeongnam in 0000, the bankrupt bankrupt Party 0000, and the respective inquiry, reply, and the whole purport of the argument for the Company 000, the bankrupt Party 1, and the bankrupt Party 1, the bankrupt Party 1, 2000.

2. Determination as to the legitimacy of the plaintiff 100's lawsuit

The defendant Goyang Tax Office, and the plaintiff Choyang Tax Office immediately filed the lawsuit in this case without going through administrative appeals, and the lawsuit filed by the plaintiff Choyang 00 is unlawful. According to Article 56 (2) of the Framework Act on National Taxes, the administrative litigation seeking the revocation of the disposition by asserting the illegality of the disposition in accordance with the tax law can not be filed without going through the pre-trial procedure, such as a request for examination or a request for trial, under the Framework Act on National Taxes. Thus, there is no evidence to acknowledge that the plaintiff Choyang Tax Office's request for the disposition of gift tax as stated in the claim notified to the first police officer on December 2007 was subject to the pre-trial procedure, and the lawsuit by the plaintiff Choyang Tax Office is unlawful without going through due pre-trial procedure. Accordingly, the above main safety objection of the defendant Goyangyang Tax Office is justified.

3. Determination on claims made by the plaintiff red 00, Park 00, Park 00, and Park 00, and Park O (hereinafter referred to as "Plaintiff red 00, etc.");

(a) Contents of the assertion;

1) The Plaintiff Hong 00 et al., who is in a relationship with Park 00 and was in a relationship with the Plaintiff Red 00, was able to listen to the horses that "doing to lend a seal that is less likely to cause difficulty in credit transactions" from Park 00, and brought about a seal to conduct banking transactions, and even though there was no agreement between Park 00 and the Plaintiff's trust of the ownership of each of the shares, it was taken over the shares in the name of Plaintiff Red 00 et al. at his own discretion, and the new shares issued by Park 00 et al. by using the name of the Plaintiff Red 00 et al. Accordingly, the Plaintiff Park 0 acquired each of the shares of this case by taking advantage of the name of the Plaintiff Hong 0 et al., and the Plaintiff Park 00 et al. was a minor who was registered as a shareholder at a high school at the time of being registered as a shareholder at a high school, and even if it was followed by the Plaintiff's special agreement with the person with parental authority at issue 000 years.

2) In the case of Plaintiff Hong 00, etc., the fact that Plaintiff Red 00 entered Plaintiff Hong 00 et al. as the owner of each of the instant shares in the detailed statement on the corporate tax base and tax amount, attached at the time of reporting the change of entry in the register of shareholders, under the circumstances where Plaintiff Hong 00 et al. did not enter the change of entry in the register of shareholders, cannot be deemed to have held that Plaintiff Hong 00

3) Even if Park 00 listed the instant shares in title trust with Plaintiff Red 00 and others, and Park 00 at the time of establishment of and capital increase with 000 and 0000 were registered as a bad credit holder responsible for a large amount of debt, and thus, it was difficult to engage in normal economic activities. Therefore, it inevitably borrowed Plaintiff Hong 00 for the obvious purpose of evading compulsory execution and acquiring sale guarantee and fulfilling the Bank’s loan screening requirements, and Park 00 is a taxpayer who is in good faith to pay delinquent national tax and local tax of KRW 00,000, regardless of the result of a stock title trust, since Park 00 was not exempted from the status of an oligopolistic shareholder who is able to be at a disadvantage under tax law, and since 00 did not have any minor global income tax burden on the dividend income, and there is no difference between the amount of stock transferred to the tax authority and the income tax of this case, and that there is no amount of stock transferred to the Plaintiff when it was paid to each tax authority for the purpose of tax evasion.

4) Due to the characteristics of the construction business, there is a difference in the volume of net profit in the three-years between the start of the business and the start of the two-years, and in calculating the value per share of the preceding three-years, there is an error of law in calculating shares by 000, such as not calculating the weighted average amount of net profit in the last three years as the average value of estimated profit per share calculated by more than two specialized credit assessment agencies or accounting corporations, and adding weight to the net profit in the third year.

(b) Fact of recognition;

1) While running 00000, Park 00 was designated as a secondary taxpayer for the corporate tax of 000 won imposed on the above company on the ground that 00 won and 00 won of himself and herself are oligopolistic shareholders, and 00 was designated respectively as a secondary taxpayer for the corporate tax of 000 won imposed on the above company, but did not perform the tax liability.

2) Park 00 lent the name of Plaintiff Red 00 in the process of establishing 000 and acquiring the management right of 0000, and acquired shares under their names, and paid the subscription price to the shares, and even in the case of capital increase with new shares more than several times, it was paid in full by means of the fictitious payment, while participating in capital increase with new shares in the name of Plaintiff Hong 00 and others.

3) Since its incorporation, 000 and 0000 have been prepared and kept a register of shareholders in the company, there has been no stock certificates issued, and have been prepared annually for the purpose of submitting it to the tax office, etc.

4) While reporting the tax base and tax amount of corporate tax for each business year from 2002 to 2004, 000 stated the major shareholders of 000 as Plaintiff Red 00, and entered Plaintiff Park Doo, Park Doo, and Park Doo as a shareholder, and that there is no oligopolistic shareholder by stating that there is no oligopolistic shareholder as a major shareholder and any other relationship that is not a special relationship with Red 00, a major shareholder, and any other relationship.

5) The 0000 reported the corporate tax base and tax amount for each business year from 2002 to 2003, the owner of the issued stocks as of the end of each business year shall be indicated as Plaintiff Red 00, etc., and the largest shareholder and other stockholders in their names shall have no special relationship with each other, and the oligopolistic shareholder shall prepare and submit a detailed statement of changes in stocks, etc. to the tax authority.

6) On April 12, 2007, when the tax investigation was conducted with respect to Plaintiff HongD, Park Ho-O, Park Ho-O, and Park 0000, 000, 000, 000, 12.000, she was registered in the register of shareholders under the name of the shareholder, and she was inevitably recorded in the register of shareholders, and she did not exercise rights as a shareholder such as receiving dividends and exercising voting rights, so she does not confirm that she is a real shareholder. Then she submitted a written confirmation to the tax authority along with a copy of her resident registration certificate, and Plaintiff Park 00, she came to know about 000 and 000 through Park Jong-dae's spouse's her child and her child, her spouse, her spouse, and her share and 000 shares that he/she was not directly invested, and submitted a written vindication to the effect that she was not a shareholder.

[Reasons for Recognition] The evidence mentioned above, Eul evidence mentioned in 21 to 23, Eul evidence 39 and 40, and the whole purport of the pleading

C. Determination

1) Whether the name theft has been committed

A) The provision on constructive gift of title trust property stipulated in Article 45-2 of the former Inheritance Tax and Gift Tax Act applies to cases where the actual owner and the nominal owner agree or communicates with each other to transfer or exercise the right, and so it can only be applied to cases where the actual owner unilaterally makes a registration or change of title, etc. using the nominal owner's name regardless of the nominal owner's intention, and if so, the tax authority must prove that the actual owner is different from the nominal owner's actual owner, and the fact that the registration or change of title, etc. was made by unilateral act regardless of the intent of the nominal owner is 000 (see, e.g., Supreme Court Decision 2004Du709, Nov. 12, 2004). Also, the provision on constructive gift of title trust property is 00, namely, that the actual owner of the Plaintiff's shares were not present at the 000-year red stocks, and that there was no other evidence that the actual owner of the Plaintiff's shares were present at the 0000-year stocks.

B) Furthermore, it is difficult to readily conclude that Plaintiff Park 00’s act of acquiring each of the instant shares in the name of Plaintiff Park Y0 without any consideration constitutes an act disadvantageous to Plaintiff Park Y00, and whether the act constitutes an act of this sea-bed under Article 921 of the Civil Act should be objectively observed and determined, and should not take into account the intention of a person with parental authority who committed the act, motive, smoke, etc. (see, e.g., Supreme Court Decision 2001Da65960, Jan. 11, 2002), and that the act of acquiring each of the instant shares in the name of Plaintiff Park 00 without any consideration is difficult to be deemed an act disadvantageous to Plaintiff Park Y0. Even if Plaintiff Park 0’s act constitutes this sea-bed act, it is reasonable to view that Plaintiff Park 00’s act of this case’s act of this case’s act constitutes an act of this sea-bed, and that Plaintiff Park 000’s act of this case’s act of tax investigation was 000 and 2000.

2) Whether title trust was established

Article 45-2(1) of the former Inheritance Tax and Gift Tax Act provides that “where the actual owner and the nominal owner are different from the property that requires a transfer or exercise of rights, the value of the said property shall be deemed to have been donated to the actual owner on the date when the stocks are registered as the nominal owner.” However, the transfer of registered shares cannot be set up against the company unless the name and address of the acquisitor are entered, and it shall be deemed that the actual owner and the nominal owner are different from those of the property that requires a transfer of rights, which are the requirements for deemed donation under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, for the transfer or exercise of rights 00 years ago (see, e.g., Supreme Court Decision 200Du1020, Feb. 8, 2007). Meanwhile, the provisions of the former Inheritance Tax and Gift Tax Act regarding the transfer of 200-year stocks and investment shares, which are documents to be submitted at the time of reporting the tax base and tax amount of the corporate tax, and the change of shares.

3) Whether the purpose of tax avoidance exists

The main text of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act provides that "where the actual owner and the nominal owner are different from the transfer or exercise of the rights, the value of the property shall be deemed to have been donated to the actual owner on the date when the rights are registered as the nominal owner, notwithstanding the provisions of Article 14 of the Framework Act on National Taxes," and the proviso of the same paragraph provides that "if the rights are registered in the name of another person without any purpose of tax avoidance or transfer of ownership is not made in the name of the actual owner, this shall not apply." Since the legislative intent of the above provision was to effectively prevent tax avoidance using the nominal trust system and to realize tax justice, it is reasonable to recognize that the proviso of the same Article was applicable only if the purpose of tax avoidance was not included in the title trust, and that there was no other objective purpose of proving that there was no possibility of tax avoidance in the future, such as the Plaintiff 20, 2003Du13649, Dec. 23, 2004.

O Park Park 00 had past 000, while managing the 00000, had a history of failing to pay taxes even though they fall under oligopolistic shareholders, and according to Article 40 of the Framework Act on National Taxes, Article 40 of the Framework Act on National Taxes, 000 and 000 should bear secondary tax liability for tax in arrears of Park 00, but by borrowing the shareholder's name, the above corporations are exempted from secondary tax liability for tax in arrears of Park 00.

Since there is no legal basis to prohibit the acquisition of shares by those in an O bad credit condition, Park 00 was able to take over each of the instant shares at any time, and Park 00 continued to maintain the title trust of the Plaintiff Hong 00 even after the economic situation has improved and the credit has been restored.

O Park 00 was exempted from the secondary tax liability of investors by borrowing only a specific person's name while borrowing the ownership of each of the shares in this case, and by distributing shares through borrowing the name from many persons, including Plaintiff Hong,00.

O The title trustee prepared a detailed statement of changes in stocks, etc. as if there is no special relationship among the states, by not being a family member nor a person who has a resident registration separate from those who should be liable for secondary tax liability.

The results of the regional tax office of theO and 000 won were confirmed to have been omitted, and the amount of value-added tax was 000 won and corporate tax was 000 won and corporate tax was 000 won and 000 won for the business year 2003, and the sales income was 100 won and corporate tax was 000 won and 000 won was not imposed for the business year 2004 by means of omitting return of sales income and appropriating approximately 000 won for processing labor expenses. In the business year 2004, the amount of value-added tax was 00 won and corporate tax was 00 won and 000 won was 1 billion won and 00 billion won was 10 billion won and 1 million won was 50 billion won and 1 million won was 50 billion won and 1 million won was 50 billion won and 1.

O 000 and 0000 did not have paid dividends. However, during the period when title trust was held, Park 00 left room to avoid the above tax burden due to title trust, even though the above tax burden was imposed on the amount leaked out of the company as above, in the case of approximately KRW 000,000, and KRW 000 was transferred out of the company through unfair accounting without any need to obtain profits on the investment because it was in a position to actually own each of the shares of this case and to promote management.

O 200 if dividends are made in the future, while the highest tax rate is applied, and if dividends are made in the future by each of the plaintiffs, including the plaintiff Red 00, it is expected that the income amount by each of the plaintiffs, etc., including the plaintiff Red 00, would have a low tax reduction effect applying the highest tax rate below the highest tax rate until it reaches the income amount to which the highest tax rate is applied, and if dividends are made in the future, including the plaintiff Red 00, and if dividends are made in the future, the global income tax amount of 00 won is compared.

4) Whether the method of evaluating unlisted stocks is unfair

According to the provisions of Articles 54 through 56 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by the Presidential Decree No. 18627, Dec. 31, 2004; hereinafter referred to as the "former Enforcement Decree of the Inheritance Tax and Gift Tax Act") and Article 17-3 of the Enforcement Rule of the same Act (amended by the Ordinance of the Ministry of Finance and Economy No. 425, Mar. 19, 2005; hereinafter referred to as the "former Enforcement Rule of the Inheritance Tax and Gift Tax Act"), the average amount of net profit and loss per share for the preceding three years at the time of assessing non-listed stocks shall, in principle, be calculated [in principle, x3 per share of the business year before the base date for appraisal) + (in cases where the net profit and loss per share of the business year before the base date for appraisal is x1) 1/6 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and where it is difficult to view the amount of net profit and loss per share to be calculated within three years thereafter.

5) Sub-committee

Therefore, the phrase "tax amount to be cancelled" in the attached Table 1. of each of the dispositions in this case in which Park 00 made with respect to the title trust of the Plaintiff Hong 00 et al., and the Defendant committed against Plaintiff Hong 00 et al., is unlawful (However, the imposition of gift tax on the ground of capital increase on December 23, 2003 of the respective dispositions in this case against Plaintiff Hong 00, Park 00, Park 00, and Park 00, and Park 00, there is room to increase the tax amount if the correction is made due to the error in the process of calculating the delinquent penalty tax due to the Defendants' failure to pay.

4. Conclusion

Then, the plaintiff Cho 00's lawsuit is illegal and dismissed, and the plaintiff Red 00, Park 00, and Park 00

Each claim shall be accepted within the above scope of recognition, and the other claim shall be dismissed as it is without merit, and the claim of plaintiff Park Park 00 shall be dismissed as it is without merit, and it shall be decided as per Disposition.