early 2009 Mine0539 (20 May 20, 2009)

Appropriateness of the assertion that there was no tax avoidance purpose in stock title trust

The fact that the purpose of title trust is not specifically disclosed, even if there was no result of tax avoidance, such as secondary tax liability as oligopolistic shareholders after the title trust, cumulative global income tax burden due to dividends, this is merely a situation after the title trust was made.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of gift tax of KRW 75,176,540 against the Plaintiff on August 4, 2008 is revoked (the date of the disposition written in the book of the court below seems to be erroneous in matters of law).

1. Details of the disposition;

"가. 원고는 2003. 7. 25. 전남 화순군 @@면 AA리 784 소재 BB종합건설 주식회사(이하 'BB종합건설'이라 한다)를 주식양수방식으로 인수하였고(원고가 같은 달 29. BB종합건설의 대표이사에 취임하였다), 같은 해 12. 31. 유상증자를 실시하였는데, 신CC이 위 유상증자에 참여하여 주식 26,500주(이하이 사건 주식'이라 한다)를 인수한 것으로 주주명부에 등재하였다.",나. 광주지방국세청장은 원고가 신CC에게 이 사건 주식을 명의신탁(이하 '이 사건 명의신탁'이라 한다)한 사실을 확인하여 그 사실을 피고에게 통보하였고, 이에 피고가 2008. 8. 4. 연대납세의무자인 원고에게 2003. 12. 31. 증여분 증여세 75.176,540원의 부과처분(이하 '이 사건 처분'이라 한다)을 하였다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not have experience in construction business at the time of acquiring BB comprehensive construction. It was merely the title trust of the instant stocks in the process of registering the newCC as a director to obtain business cooperation from a newCC with substantial experience in construction business while offering capital increase. ① There was no reason to title trust the instant stocks to the newCC with a view to evading gift tax, ② there was no intention to avoid oligopolistic shareholders in light of all the circumstances. ③ BB comprehensive construction did not intend to avoid taxes to the Plaintiff, in light of the fact that there was no secondary tax liability as oligopolistic shareholders after the title trust of this case, the occurrence of secondary tax liability as oligopolistic shareholders, the cumulative global income tax burden due to dividends, and the deemed acquisition due to the acquisition of real estate.

(b) Related statutes;

The entries in the attached statutes are as follows.

C. Determination

(1) The legislative intent of Article 41-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002) is to recognize an exception to the substance over form principle in the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, if the title trust was recognized to have been conducted for any reason other than the purpose of tax avoidance, and it is merely a minor reduction of tax incidental to the said title trust, it cannot be deemed that there was a "tax avoidance purpose" under the proviso of the same Article in the said title trust, and the burden of proving that there was no purpose of tax avoidance in the title trust exists a person who asserts it (Supreme Court Decision 2004Du13936, May 25, 2006).

(2) On the other hand, although the plaintiff alleged that there was no tax avoidance purpose in the title trust in the instant case, the following circumstances, which are acknowledged by considering the overall purport of the argument in the statement No. 3, i.e., the plaintiff asserted that the title trust in this case was conducted to obtain business cooperation from NewCC, but it does not seem to have a clear relationship between business cooperation and the title trust in this case, and newCC stated that it was simply lent the name at the plaintiff's request on May 13, 2008, and the plaintiff did not expressly state the purpose of the title trust in this case, and whether there was a tax avoidance purpose should be determined at the time of the title trust. However, even if there was no outcome of tax avoidance, such as the second tax payment duty as oligopolistic shareholder after the title trust in this case, and cumulative global income tax burden due to dividends, this is merely a circumstance after the title trust, and in light of the lack of evidence to acknowledge the new purpose of the plaintiff's testimony and the evidence submitted by the new witness in this case, the plaintiff did not fall under the title trust.

3. Conclusion

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