Whether the purpose of tax avoidance against the deemed donation of title trust is

The fact that the Plaintiffs’ nominal trust was made for the purpose of opening a transaction, and thereafter the title trust shares were disposed of to a third party or returned to the title truster’s name, and no tax avoidance purpose exists, such as oligopolistic shareholders, small tax, transfer tax, securities transaction tax, etc.

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

1. On December 3, 2003, the head of ○○ Tax Office imposed the gift tax of KRW 336,00,000 on the Plaintiff Lee ○○ on December 3, 2000, and the head of △△△ Tax Office imposed the gift tax of KRW 212,10,000 on the Plaintiff △△△△△ on December 8, 2003, respectively.

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

The same shall apply to the order.

1. Details of the disposition;

A. On February 22, 200, 200, △△△△△ Co., Ltd. (hereinafter referred to as “○○ex”) held 100,500 shares of ○○○○○○○, and each of the instant title trusts (hereinafter referred to as “instant title trust”) with the Plaintiff ○○○, and 71,00 shares to the Plaintiff △△△△△△, respectively.

B. As a result of the tax investigation conducted with respect to ○○ex, the head of the ○○ Tax Office confirmed the fact that the △△△△ held the shares in the future of the Plaintiffs as above, and notified the Defendants of the fact that it constitutes a constructive gift of title trust property under Article 41-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 6780, Dec. 18, 2002; hereinafter referred to as the “Act”). Accordingly, on December 3, 2003, the head of the ○○ Tax Office imposed the gift tax of KRW 336,00,000 for the Plaintiff ○○○, and the head of the △△△△△ Tax Office imposed the gift tax of KRW 212,10,000 for the Plaintiff △△△△△ for the year 200 (hereinafter referred to as the “each disposition of this case”).

C. The plaintiff △△△△ on February 4, 2004, while the plaintiff ○○ filed a national tax appeal with each National Tax Tribunal on the 17th of the same month, but the National Tax Tribunal dismissed the national tax appeal on July 28, 2005.

[Ground of recognition] Facts without dispute, Gap 19's evidence 1, 2, Gap 20's evidence 1, 2, Eul 1-1, 2's evidence 1-2, and the purport of the whole pleadings

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

A. The parties' assertion

With respect to the Defendants’ assertion that each of the dispositions of this case is lawful on the grounds of the disposition and relevant Acts and subordinate statutes, the Plaintiffs: (a) the title trust of this case was made by ○○ Electric Co., Ltd. (hereinafter “○○ Electronic”) to establish a transactional relationship with ○○ Electric Co., Ltd. (hereinafter “○○ Electricity”); (b) the secondary tax liability of oligopolistic shareholders, deemed acquisition tax and dividend income tax are expected to be avoided in relation to the title trust of stocks; (c) the secondary tax liability of oligopolistic shareholders, oligopolistic shareholder’s deemed acquisition tax and dividend income tax are liable for the secondary tax liability of oligopolistic shareholders; (d) in this case, the instant tax that may be avoided to △△, the title truster, did not exist from the beginning; and even if the instant tax reduction was minor, it is merely the probability of tax avoidance, and thus, the instant disposition of this case is unlawful.

(b) Related statutes;

former Inheritance Tax and Gift Tax Act (amended by Act No. 6780 of Dec. 18, 2002)

Article 41 Presumption of Donation of 2 Title trust property

(1) Notwithstanding Article 14 of the Framework Act on National Taxes, in case where the actual owner and the nominal owner are different from the property which requires a registration, etc. for the transfer or exercise of rights (excluding land and buildings; hereafter in this Article the same shall apply), the value of such property shall be deemed to have been donated from the actual owner by the nominal owner on the date when it is registered, etc. to the nominal owner (in case of the property whose title is required for the transfer of rights, it refers to the date following the end of the year following

1. Where assets are registered, etc. in the name of another person without the purpose of tax avoidance;

(5) The term "taxes" in paragraphs (1) 1 and (2) means the national tax and local tax as provided in subparagraphs 1 and 7 of Article 2 of the Framework Act on National Taxes and the customs as provided in the Customs Act.

C. Determination

(1) The legislative intent of Article 41-2(1) of the Act 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 "the purpose of tax avoidance" under the proviso of the same Article in the said title trust (see Supreme Court Decisions 2004Du7733, May 12, 2006; 2006Du2909, Jun. 29, 2006).

(2) As to the instant case, the following facts can be acknowledged in full view of the health class, A1, A2, A11-1, A12-2, A12-1, A13-2, A14-1 through 4, A23-1, A23-3, A24-24, A25-25, witness Park ○○○, and Park △△△△△’s testimony.

(A) The △△△△ was a major shareholder and vice president of the ○○ Industries, and the next ○○○ was a major shareholder of the ○○○○○○ Company located in the ○○○○○ region, and the Plaintiff ○○○ was the △△△△△△△△△△△, and the Plaintiff

(B) On December 1, 1987, ○ Electric Co., Ltd. established ○○ Electric Co., Ltd. for restructuring, ○○ Electric Co., Ltd. (hereinafter “○○ Electric Co., Ltd.”) and sold most of ○○ Electric Co., Ltd. shares to ○ Industries Co., Ltd. (hereinafter “○○ Electric Co., Ltd.”) after receiving a disguised affiliated judgment from the Fair Trade Commission around 1996, when the ○ Electric Co., Ltd. was supplied with products such as automobile s

(C) The ○○ Industry Co., Ltd. was unable to overcome management difficulties due to the IMF foreign exchange crisis and was in default, and ○○ Electronic Co., Ltd. was also in bankruptcy on September 15, 1998. The transactional relationship with ○ Electric Co., Ltd. and ○○ Electronic Co., Ltd. continued to exist until 2000 after the dishonor.

(D) Upon the application of the creditor Korea Asset Management Corporation, the auction procedure for the assets of ○○ Electric was in progress. The △△△ and the next ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 24 January 24, 200.

(E) At the end of January 200, 100, ○○ Electrical Business Department requested ○○○ Electrical Business Department to engage in the supply transaction of the products. However, this ○○ Electric Business Department expressed a negative position on the grounds that the business career of ○○○○○ and its affiliated company was irrelevant to the electrical company. Accordingly, ○○ Electronic and its executives and employees, and Plaintiff ○○○○○ Electrical’s request for the opening of a transactional relationship while holding several interviews with ○○ Electrical and its executives and employees on several occasions, and around February 2000, ○○ Electric Business Department expressed an intention to open a conditional transactional relationship with the existing ○○ Electrical in the event that multiple regional accreditations have a form of a stock company participating in as a shareholder.

(바) 이에 이□□과 차○○은 2000. 2. 3. ○○텍의 이사회를 개최하여 70억원의 유상증자(70만 주, 주당 10,000원)를 결의한 후 납입기일을 2000. 2. 21.로 정하였고, 이후 ○○텍을 다수의 ○○지역 상공인이 참여하는 주식회사 형태로 만들기 위하여 자신들의 약정지분에 대하여 투자자의 모집을 시도하였으나 전체 ○○텍 주식 710,000주 중 한○○가 7,100주를 인수한 이외에 투자자를 모집하지 못하였으며, 유상증자일인 2000. 2. 22. 다수의 주주가 참여하는 외양을 갖추기 위해 이□□은, 173,500주는 자신 명의로, 100,500주는 원고 이○○ 명의로, 71,000주는 원고 이△△의 명의로 각 취득하였고, 차○○은, 99,400주는 자신 명의로, 각 63,900주는 이✕✕, 안○○ 명의로, 각 60,350주는 김○○, 안△△ 명의로 각 취득하였다.

(G) On July 8, 2000, ○ Electricity and ○○ Tech engaged in a transaction by entering into a franchise processing contract for one year with respect to the entire products (the goods supplied by ○○ Tech from July 1, 200 to December 31, 200 are equivalent to approximately 80% out of the total sales of ○ Tech) and from July 2001, OEM began regularly from July 1, 200.

(h) On February 1, 2001, this Ordinance sold the shares in the name of the Plaintiff Lee ○ to Park○, etc. at par value of KRW 10,000, and on April 20, 2006, during the instant lawsuit, this Ordinance changed the shares in the name of the Plaintiff △△△△ on April 20, 2006.

(3) The following facts revealed in the above facts. In other words, in order to establish a transactional relationship with ○○ Electricity, which is a major customer of ○○ Electronic, ○○○○○○○○, ○○○○ Industries, the instant title trust was made in order to have multiple shareholders participate in the recruitment of investors. This was the fact that, upon the establishment of a transactional relationship with ○○ Electricity, the instant shares trusted in title to the Plaintiffs were disposed of to a third party or the title trust relationship was terminated, and the shares acquired in the name of ○○○○○○○ and the Plaintiffs do not fall short of 51/100 of the total shares issued in ○○, and thus, it does not constitute an oligopolistic shareholder subject to the secondary tax liability or deemed acquisition tax under the Framework Act on National Taxes and Local Tax Act, and even if it did not have any actual purpose of disposing of the Plaintiff’s shares in the name of ○○○ Industries, the Plaintiff did not have any dividend income tax imposed on the ○○○ Industries for the future.

Therefore, since the title trust of this case cannot be deemed to have "the purpose of tax avoidance" under the proviso of Article 42-2 (1) 1 of the Act, each disposition of this case is unlawful.

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted for all reasons, and it is so decided as per Disposition.