Seoul Administrative Court-2015-Guhap6264 (2016.01)

Cho Jae-2014-China-2574 (Law No. 16, 2015)

It is difficult to conclude that the purpose of tax avoidance exists and the illegal non-declaration penalty tax exists, and that the register of shareholders exists, or that the transfer has been changed.

It is difficult to conclude that the purpose of tax avoidance exists, and the constructive gift of title trust is reported, but there is no active and intentional concealment or aggravation, so unfair non-declaration penalty tax is illegal, and there is a register of shareholders.

Donation of title trust property under Article 45-2 of the Inheritance Tax and Gift Tax Act

2016Nu66300 Revocation of Disposition of Imposing gift tax

1.A

2.B

3. NewCC;

4. Transmittar;

5. E; and

6. F; and

7. leG;

8. HaH;

1. J chief of J tax office;

2. The director of the Korea Tax Office.

3. The director of the LL tax office.

4. The director of the MM tax office.

Seoul Administrative Court Decision 2015Guhap6264 decided September 1, 2016

March 28, 2018

May 16, 2018

1.The judgment of the first instance shall be modified as follows:

A. The Defendants’ imposition of gift tax on March 27, 2009 of the imposition of gift tax (including additional tax) by the relevant Plaintiffs on each date indicated in the “list of Imposition of Gift Tax Imposition” as of the date of disposition shall revoke each excess of the amount indicated in the “reasonable tax amount” column.

B. Each of the plaintiffs' remaining claims is dismissed.

2. The total cost of the lawsuit shall be borne in the same manner as the statement in the attached Table 2.

The judgment of the first instance court shall be revoked. Each disposition of imposition of gift tax (including additional tax) in attached Form 1, which the Defendants issued against the Plaintiffs, shall be revoked.

1. Details of the disposition;

가. 홍NN, 정PP은 그들이 운영하던 ○○학원, ○○캠퍼스, ○○학력평가연구소(이하 '이 사건 학원'이라 한다)를 코스닥 상장법인인 주식회사 QQQ(이하 'QQQ'라 한다)에게 양도하기로 하였다(정PP은 그가 운영하던 ○○학원의 매각을 사실상 홍NN에게 위임하였다).

나. 홍NN과 QQQ는, 홍NN이 주식의 80%를 보유하고 있던 주식회사 RRR(이하 'RRR'라 한다)1)의 유상증자를 통해 RRR가 이 사건 학원을 인수하면, 다시 RRR의 주식 전부를 QQQ가 인수하는 방식으로 이 사건 학원을 양수도하기로 하였다.

C. On March 27, 2009, RedN held title trust with the Plaintiffs of 17,000 shares out of the shares of the said company allocated to them (hereinafter “one shares per share”) during the process of issuing new shares of RR (the total number of shares issued by RR after the increase of the value was 30,000 shares).

라. 홍NN은 2009. 4. 14. QQQ와 사이에 RRR의 주식양수도 및 경영권 양수도 계약(이하 '이 사건 양수도 계약'이라 한다)을 체결하고, 대금 84억 원 중 40억 원은 주식회사 SSS(이하 'SSS'라 한다) 주식 82,491주로, 나머지 44억 원은 현금으로 지급받기로 하였다.

마. 홍NN은 2009. 4. 14. 이렇게 취득하게 된 SSS 주식 중 35,390주는 자신 명의로 양수하고, 29,675주(이하 '쟁점 2 주식'이라 한다)를 원고 이AA, 안BB, 송DD, 조FF, 윤GG의 명의로 양수하면서 이들에게 명의신탁하였고(이하 위 원고들을 '쟁점 2 주식 관련 원고들'이라 한다), 같은 날 RRR 발행주식 30,000주 중 18,929주에 대하여 QQQ 앞으로 명의개서가 이루어졌다.

바. 홍NN과 QQQ는 2009. 5. 4. 이 사건 양수도 계약의 잔금으로 현금 44억 원을 지급하는 대신, 홍NN이 나머지 RRR 주식 11,071주를 QQQ에 현물출자하고 신주를 인수하며, 이미 QQQ 앞으로 명의개서된 18,929주 중 4,643주에 대하여는 13억 원을 지급하는 것으로 변경하는 1차 변경계약을 체결하였다.

사. QQQ는 1차 변경계약에 따라 명의수탁자들인 정PP, 원고 안BB, 신CC, 송DD, 조FF, 윤GG, 정HH로부터 RRR 주식 11,071주를 현물출자 받아 제3자배정의 방식으로 신주를 발행하고자 하였으나, 법원으로부터 인가를 받지 못하였다. 이에 홍NN과 QQQ는 2009. 7. 17. 다시 위 11,071주에 대하여 31억 원을 현금으로 지급하고, 잔금 44억 원(= 4,643주에 대한 13억 원 + 11,071주에 대한 31억 원)은 2009. 9. 30.까지 지급하기로 하는 2차 변경계약을 체결하였다.

아. QQQ는 2011. 4. 12. SSS에 흡수합병되었다.

I. The Defendants applied Articles 45-2(1) and 60 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) to impose and notify the relevant Plaintiffs of each gift tax (including additional tax) listed in the separate sheet No. 1 (hereinafter referred to as the “instant disposition”). The gift tax on the constructive gift of nominal trust for the pertinent shares 2 shares shall be the date of the contract formation and the date of appraisal, and the tax base was calculated by summing up the donated gift on April 14, 2009, which is the date of the contract formation.

[Reasons for Recognition] Facts without dispute, Gap's statements, Gap's statements, 9 through 11, 18, 24, 28, 53, Eul's statements, 1 through 4, 6 through 9 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

1) QQQ는 홍NN이 주식 80%를 보유하고 있던 RRR로 하여금 유상증자를 통해 홍NN 개인이 운영하는 이 사건 학원을 인수하게 하고, RRR 주식을 전부 QQQ에 이전하는 방법으로 이 사건 학원을 법인화하여 인수하려고 하였다. 그런데 그 과정에서 홍NN 개인에게 이 사건 양수도계약의 대가로 QQQ가 발행한 주식을 교부하게 되면 QQQ의 최대주주가 변경되어 주식시장에 공시하여야 할 의무가 발생하는바, 그와 같은 상황은 QQQ의 주가 등에 부정적인 영향을 끼치게 되므로, 이를 피하기 위하여 QQQ는 홍NN에게 RRR가 다수 주주가 존재하는 법인인 것처럼 RRR 주식의 명의를 분산하여 달라고 요구하였다. 당시 자금 상황이 어려웠던 홍NN으로서는 이와 같은 QQQ의 요구를 거절하기 어려워 원고들에게 쟁점 1 주식을 명의신탁하게 된 것에 불과하므로, 홍NN에게 쟁점 1 주식 명의신탁에 관한 조세회피의 목적이 있었다고 할 수 없다.

2) 설령 쟁점 1 주식에 관해 명의신탁재산의 증여의제 규정이 적용된다고 하더라도, QQQ가 지급하기로 한 대금 84억 원에는 홍NN이 별도로 보유한 '○○학원' 서비스표권의 전용사용권 설정 대가가 포함되어 있으므로, 피고들이 위 84억 원 전액을 RRR 주식의 매매사례가액으로 보아 쟁점 1 주식의 가액을 주당 28만 원(=84억 원 ÷ 30,000주)으로 계산한 것은 위법하다.

3) In order to impose gift tax under Article 45-2 of the former Inheritance Tax and Gift Tax Act by deeming the title trust of the instant two shares as a donation, the Defendants must prove the fact that the Defendants satisfied the taxation requirements under the main sentence of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act or Article 45-2(3) of the same Act. The Defendants, without confirming whether the transfer of shares was made in the future to the Plaintiffs related to the two shares at the issue of SS’s shareholders’ register, did not confirm whether the transfer was made in the future, on the basis of the statement of changes in stocks, etc. solely based on the statement of changes in stocks, etc., on April 14, 2009, when the transfer of shares was made on April 14, 2009 as the date of contract formation and the date of appraisal, and thus, the instant disposition on the two shares at issue was unlawful. Even if Article 45-2(3) of the former Inheritance Tax and Gift Tax Act applies by deeming that the list was not prepared.

4) 쟁점 2 주식은 쟁점 1 주식의 명의신탁 이후 RRR 주식 전부를 이전하면서 그 반대급부로 취득한 것에 불과하므로, 이를 별개의 명의신탁으로 보아 증여세를 부과할 수 없다. 또한 홍NN은 쟁점 1 주식의 명의신탁의 경우와 같이 쟁점 2 주식의 명의 또한 분산하여 달라는 QQQ의 요구에 따라 쟁점 2 주식을 명의신탁하게 된 것에 불과하므로, 조세회피의 목적이 있었다고 할 수 없다. 한편, 이 사건 양수도 계약서상의 기재와 달리 홍NN과 QQQ가 실제 합의한 계약금액은 44억 원에 불과하고, 나머지 40억 원의 대금 명목으로 교부된 SSS 주식은 위 44억 원의 지급을 담보하기 위해 이전된 것에 지나지 않으며, 실제로 홍NN이 QQQ로부터 지급받은 주식, 현금 등의 가치를 모두 종합해 보아도 30억 원 정도밖에 되지 않는다. 따라서 양도담보 목적으로 이전된 쟁점 2 주식에 대하여 명의신탁재산의 증여의제 규정을 적용하여서는 아니된다.

5) Even if the provision on deemed donation of title trust in this case is applied, the Plaintiffs’ deemed donation of title trust is not in essence a donation, but rather, the language and text of Article 55 of the former Inheritance Tax and Gift Tax Act does not stipulate that the previous donation should be added in calculating the gift tax base based on the deemed donation of title trust. In addition, it is difficult to place a case where the title trust is divided in order to avoid a progressive tax rate due to the characteristics of title trust with no intent to transfer the ownership of property, and it is difficult to place a case where the title trust is divided in order to avoid a progressive tax rate due to

6) Even if the provision on deemed donation of title trust of this case applies, in light of the constitutional right to refuse to make statements, the presumption of innocence, and the fact that it is practically impossible to demand the parties to the administrative punishment to report that the title trust party is subject to imposition, it cannot be deemed that the title trust party has a duty to report the taxable value and tax base of gift tax. As such, the part on imposition of penalty tax and penalty tax for unfaithful payment in the instant disposition is unlawful. Even if the above duty to report is acknowledged against the Plaintiffs, since the Plaintiffs did not engage in fraudulent or other unlawful act, such as concealing or pretending the facts related to taxation, etc., the imposition of penalty tax on general non-reported return (20% of penalty tax rate) should not be imposed. Therefore, the part on the tax amount arising from the difference in the above additional tax rate is unlawful.

B. Relevant statutes

Attached Form 3 is as listed in the relevant statutes.

C. Determination

1) Determination as to title trust of the instant one stock

A) Whether there was an objective of tax avoidance or not

(1) The legislative purport of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is to effectively prevent the act of tax avoidance using the title trust system and realize the tax justice, so if the proviso of the same Article is applicable only to cases where the purpose of tax avoidance is not included in the purpose of the title trust, and if the title trust is recognized as having been conducted for any reason other than the purpose of tax avoidance, and only a minor reduction occurs in the title trust incidental to the said title trust, it cannot be readily concluded that there had been the purpose of tax avoidance in the title trust. In this case, the burden of proving that there was no purpose of tax avoidance, and the fact that there was no purpose of tax avoidance, can be proven by means of proving that there was another purpose other than the purpose of tax avoidance. However, as the title holder bearing the burden of proof, there was no clear purpose of tax avoidance and that there was no purpose of tax avoidance in the title trust, and if there was no tax avoidance in the future at the time of the title trust or there was no tax avoidance in the future, it should be proven to the extent of ordinary doubt by objective evidence (see, 2017Du.

(2) 위 법리에 비추어 이 사건에 관하여 보건대, 앞서 본 처분의 경위 및 앞서 든 증거와 을 제11, 12, 27호증의 각 기재에 변론 전체의 취지를 종합하여 알 수 있는 아래와 같은 사정에 비추어 보면, QQQ가 최대주주 변경에 관한 사항을 공시하여야 할 의무를 면하여 주식시장에서 부정적인 평가를 받을 위험을 회피하고, 주가 상승 등을 통하여 경영권을 안정화하기 위하여 홍NN에게 홍NN 개인이 소유하는 RRR의 주식을 분산하여 명의신탁하는 형태로 이 사건 양수도계약을 체결하여 줄 것을 요구하였다는 이유만으로 홍NN이 원고들에게 쟁점 1 주식을 명의신탁하였다는 것은 쉽게 납득하기 어렵다. 설령 쟁점 1 주식의 명의신탁이 QQQ의 요구에 의한 것이라고 볼 여지가 있다고 하더라도, 홍NN에게는 그러한 주된 목적과 아울러 조세회피의 의도도 있었다고 봄이 타당하고, 원고들이 제출한 증거들만으로는 쟁점 1 주식에 관한 명의신탁이 조세회피의 목적 없이 단지 명의신탁에 부수하여 사소한 조세경감이 생기는 경우에 해당한다고 보기 어렵다. 따라서 원고들의 이 부분 주장은 이유 없다.

① 원고들은 쟁점 1 주식과 관련하여 QQQ가 잔금을 지급할 능력이 없어 당초부터 QQQ의 신주를 배정하는 방법으로 잔금을 지급할 것을 예정하고 이 사건 양수도 계약을 체결한 것이고, 이후 잔금 지급방식을 변경하여 홍NN에게 44억 원의 현금을 지급하는 대신 QQQ 주식을 교부하기로 하였는바, 홍NN 개인에게 위 잔금 상당의 QQQ 주식을 전부 교부하게 되면 QQQ의 최대주주가 변경됨으로 인하여 회사 경영이 불안정해질 위험이 있으므로, QQQ가 홍NN에게 미리 쟁점 1 주식의 명의를 분산하여 달라고 요구하였다고 주장하나, 1차 변경계약에 따라 QQQ 신주 5,904,531주가 발행되더라도 홍NN이 QQQ의 총발행주식 중 14.45%2)(= 5,904,531주/증자 후 총 발행주식 40,850,777주)를 지배하게 되어 QQQ의 실질적인 최대주주가 된다. 따라서 위와 같은 경우 홍NN이 최대주주로서 QQQ의 경영에 영향을 미칠 수 있게 되므로, 쟁점 1 주식에 관한 명의신탁이 단순히 명의상 최대주주의 변동을 우려한 QQQ의 일방적인 요구에 따라 이루어졌다고 단정하기는 어렵다.

② 또한 위 1차 변경계약은 이 사건 양수도 계약이 체결된 2009. 4. 14. 이후인 2009. 5. 4.에 이르러서야 체결되었는데, 갑 제4호증 등의 기재만으로는 QQQ가 계약 체결 당시부터 위와 같은 대금지급방법을 염두에 두고 홍NN에게 RRR의 명의 분산을 요구하였고, 오로지 이러한 요구 때문에 홍NN이 조세회피의 목적은 전혀 없이 쟁점 1 주식에 관한 명의신탁을 한 것이라고 단정하기 어렵다. 설령 홍NN과 QQQ 사이에 이 사건 양수도 계약 체결 당시부터 이미 QQQ 주식 발행을 통한 잔금 지급 방식을 예정하고 있었다고 하더라도, 홍NN은 이 사건 양수도 계약 체결 당시 주식을 분산 보유하는 형태로 명의신탁을 하게 되면 장래 코스닥 상장법인인 QQQ의 주식을 양도할 경우 발생할 양도소득세를 회피할 수 있다는 점을 예상할 수 있었을 것으로 보인다.

③ The term “purpose of tax avoidance” under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act includes not only the avoidance of tax to be imposed in the future, but also the case where a title truster, who had already been missing, made it difficult for him to secure tax claims and avoided the payment of tax claims, etc. (see Supreme Court Decision 2017Du39419, Dec. 13, 2017). Red NN was in arrears with national tax of KRW 00 million on March 30, 2009, and it appears that RR had been in excess of its liability to pay taxes of KRW 3 billion to the Plaintiffs, such as having been liable for personal debts of KRW 3 billion. In addition, the issue that Red NN held 80% of the outstanding shares of the National Tax Act before title trust to the Plaintiffs is later exempt from taxation under Article 35-2(1) of the former Framework Act on National Taxes (amended by Act No. 1910, Feb. 19, 2019).

④ The RedN did not report the transfer income tax, etc. in the course of distributing and trusting the issues 1 stocks generated from RR’s capital increase by issuing them under the names of the Plaintiffs. As such, there is room to deem that the tax authority clearly made it difficult to collect the liability by gathering tax sources in a timely manner, and thus, it cannot be readily concluded that the above title trust act of RedN is irrelevant to the purpose of tax avoidance.

B) Whether it is appropriate to assess the key one stock at KRW 280,000 per share

The reasoning for this Court’s explanation is as follows: (a) it is appropriate to assess one share of the issue at issue at KRW 280,000 per share under the six pages of the first instance judgment; and (b) therefore, it shall be accepted in accordance with Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

C) In the case of deemed donation of title trust, whether it is unlawful to apply the unfair non-reported additional tax rate to the taxation disposition on the 1 share issue issue, even in the case of deemed donation of title trust

(1) Whether the obligation to report under Article 68(1) of the former Inheritance Tax and Gift Tax Act exists even in the case of deemed donation of title trust

Article 47-2 (1) of the former Framework Act on National Taxes provides that when a taxpayer fails to file a tax base return by the statutory due date of return, an amount of general non-reported penalty tax equivalent to 20/100 of the calculated tax amount under tax-related Acts shall be added to or deducted from the payable tax amount, and Article 47-2 (2) of the same Act provides that where a taxpayer files a return without filing a tax base return in an unjust manner, "the method prescribed by Presidential Decree as violating the obligation to report the tax base or tax amount of national tax by unlawful means" is defined as "the method prescribed by Presidential Decree as violating the obligation to report the tax base or tax amount on the basis of covering all or part of the fact that serves as the basis for calculating the tax base or tax amount of national tax", the taxpayer shall either pay the payable tax amount or deduct the refundable tax amount from the payable tax amount.

However, comprehensively taking account of the following circumstances, not only a person who received a donation by agreement between the parties but also a person who is deemed to have received a donation under the statutes shall be deemed to have a duty to report as a person liable to pay a gift tax (see Supreme Court Decision 2002Du2826, Oct. 10, 2003). Furthermore, even if the Plaintiffs cannot impose penalty tax on the shares that the Plaintiffs did not have a duty to report, the mere fact that it is difficult to expect the Plaintiffs to report to the tax authority by revealing the nominal trust facts cannot be deemed to have justifiable grounds for failing to fulfill such duty to report, and even if the Plaintiffs were aware that they did not have a duty to report, it is merely the site or misunderstanding of the law, and it is difficult to view that there is a conflict of opinion due to interpretation as to the existence of the above duty to report beyond it constitutes a case where the Plaintiffs did not know the duty to report. Accordingly, even if the Plaintiffs cannot impose penalty tax on the shares that the Plaintiffs did not submit the taxable value and tax base report on gift tax, it cannot be accepted the Plaintiff’s allegation.

① The concept of donation under the Inheritance Tax and Gift Tax Act includes deemed donation or presumption as well as general donation. As such, the title trustee of an asset that requires a transfer of the right or an exercise of the right is equally treated as a donee under the Inheritance Tax and Gift Tax Act. However, pursuant to the main text of Article 68(1) and Article 4(1) of the former Inheritance Tax and Gift Tax Act, a donee who is liable to pay the gift tax must file a report on the taxable value and tax base

② In a case where a title trust is used as a means of concealing a gift, even if gift tax is imposed within a limited scope recognized as an object of tax avoidance by imposing sanctions, it is only one of the taxes prescribed by the Act, and it cannot be deemed as a fine under the Criminal Act, and thus, the presumption of innocence cannot be applied to the principle of presumption of innocence under the Constitution (see Constitutional Court Order 2004HunBa40, Jun. 30, 2005; 2005HunBa24, Feb. 24, 200). In addition, requiring a taxpayer to report tax information, etc. to confirm the tax evasion, not to confirm the tax evasion, but to confirm the already established tax liability. Considering the existence of a title trust without the purpose of tax avoidance, reporting that a title trust was made by itself cannot be deemed the same as the confession of a crime of tax evasion provided for in Article 3 of the Punishment of Tax Evaders Act, etc. Therefore, it is difficult to deem that recognizing the duty to report as above violates

③ Since whether one’s act constitutes the subject of gift tax is clearly stipulated in the law, it cannot be deemed impossible to expect a trustee to report the taxable value and tax base of gift tax on his/her own. Moreover, it cannot be deemed that the sound of strong and genuine mind that a title trustee’s freedom of not reporting the taxable value and tax base of gift falls under the territory of “a strong and genuine conscience” (see, e.g., Supreme Court Decision 2005Do3385, Sept. 9, 2005) that one’s value of existence as a human being is destroyed without doing so in determining the right and wrong of a certain matter.

④ Even if there is no separate form that a taxpayer can use in filing a return on gift tax pursuant to a title trust under the former Enforcement Rule of the Inheritance Tax and Gift Tax Act, in light of the fact that the tax law does not provide a daily form of filing a return by all legal relations or act that constitutes the subject of taxation, as well as that it is not impossible to file a report using the attached Form 10 under Article 9(1) of the National Tax Collection Act and Article 6(1) of the Enforcement Rule of the same Act, such circumstance does not constitute a ground for denying the title trustee’s duty to report the taxable value and tax base of gift tax

(2) Whether the application of the unfair non-reported additional tax rate to the taxation disposition on the 1st issue shares is unlawful

Article 27 (2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter referred to as the "former Enforcement Decree of the Framework Act on National Taxes") provides that "A false recording of books, such as the preparation of double-entry books," "a false recording," "a false recording," "a false recording," "a false recording, etc. (title 2)," "a destruction of books and records" (title 3), "a destruction of books and records" (title 4), "a concealment of assets or income, profit, act, manipulation or concealment of transactions (title 5), "a fraud to evade or receive a refund or deduction of national taxes, and other fraudulent acts (title 6)."

The legislative purport of the above provision is to impose heavy sanctions on taxpayers who violate their duty to report their tax base or tax amount by unlawful means (20% and 40% of the penalty tax rate for non-declaration of taxes) in cases where it is difficult for the tax authorities to discover facts that form the basis of calculating the tax base or tax amount of national taxes or fraudulent acts, or where there is such unlawful acts as creating false facts, etc. (see, e.g., Supreme Court Decision 201Du4158, Apr. 13, 2017). Therefore, “Fraud or other unlawful acts” under Article 27(2)6 of the former Enforcement Decree of the Framework Act on National Taxes refers to a deceptive scheme or other unlawful acts that make it impossible or considerably difficult to impose taxes or make it difficult to do so, and it does not constitute merely failing to file a tax return under the tax law or filing a false tax return without addition to the circumstances showing positive intent. In addition, the legislative purport of the above provision should not be interpreted or 160% of the ordinary administrative disposition law, such as additional tax, etc.

In light of the above legal principles, in light of the following circumstances revealed by comprehensively considering the purport of the entirety of the arguments and arguments as to the instant case, it is difficult to deem that the Plaintiffs’ failure to report the gift tax base on title trust with respect to the title trust of the instant shares 1 constitutes a fraudulent scheme or other unlawful act that makes it impossible or considerably difficult to impose and collect taxes, and otherwise, it is difficult to recognize that the Plaintiffs filed a non-declaration of tax base by unlawful means. Therefore, in the instant disposition, the portion exceeding the amount calculated by applying the general non-declaration penalty tax rate (20% of the penalty tax rate) out of the penalty tax (40% of the penalty tax rate for non-declaration of tax) ought to be revoked illegally.

① In the case of a deemed donation under a title trust under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, the taxation requirement itself forms a false appearance that the nominal shareholder and the beneficial shareholder are different for the purpose of tax avoidance. In order to form such appearance, the agreement on acquisition of shares with different contents, unnecessary capital transfer, and accounting books accordingly, etc. However, if both the act of title trust and the acts incidental thereto are deemed to be included in the “unfair method” under Article 47-2(2)1 of the former Framework Act on National Taxes, most of the cases where deemed a deemed donation due to a title trust would result in the imposition of penalty tax without filing a report. Therefore, in order to apply the provision on penalty tax on a deemed donation under a title trust, it is reasonable to deem that the act of title trust and the acts incidental thereto are more active and impossible to impose and collect the gift tax due to the deemed donation under a title trust, or that the act of concealing or forging the fact that makes it considerably difficult to do so.

(2) In the case of deemed donation, since the subject matter of reporting is a gift tax based on the title trust, the fact constituting the basis of tax base, etc. is the title trust. Therefore, it is difficult to deem that the subject matter of the concealment and provisional book is limited to the title trust itself, and it is also difficult to expand the basic facts, such as capital gains tax, etc. evaded from the title trust of this case. In other words, even if the title trust of this case has concealed and induced the underlying facts of other taxes, it is reasonable to deem that the penalty tax for an unfair non-reported return on the gift tax due to the deemed donation of title trust of this case

③ As a kind of sanction against title trust for the purpose of tax avoidance, a gift tax due to a deemed donation has the nature of administrative punishment (see, e.g., Constitutional Court Order 2012HunBa259, Sept. 26, 2013). Even if a gift tax is imposed due to a deemed donation, the substance of the relevant transaction cannot be deemed as a donation. Therefore, in the case of a general title trust, the imposition of gift tax due to a deemed donation in itself can be deemed as having achieved the legislative purpose to prevent the act of tax evasion pursuant to the title trust. Therefore, imposing penalty tax on a high-rate unfair report without any exception solely on the ground that the donation was made is an excessive sanction, and thus, it may be contrary to the purport of Article 47-2 of the former Framework Act on National Taxes that prescribes that the rate of non-reported penalty tax shall be applied only

④ Even if the title trust is deemed a gift, there is no evidence to acknowledge that the HongN, beyond the general act incidental to the act of title trust in the process of title trust by distributing one of the issues in the name of the Plaintiffs, was unable to impose and collect the gift tax pursuant to the act of title trust donation, such as making false documents or manipulating transactions, etc., or concealing and causing considerable difficulty in imposing and collecting the gift tax pursuant to the act of title trust donation.

2) Determination on title trust of the instant 2 shares

A) With respect to the legal fiction of title trust property, Article 45-2 of the former Inheritance Tax and Gift Tax Act provides, “in case where the actual owner and the title holder are different from the property (excluding land and buildings) which requires a registration, etc. for a transfer or exercise of the right, the value of the property shall be deemed to have been donated to the actual owner on the date when it is registered, etc. as the title holder notwithstanding the provisions of Article 14 of the Framework Act on National Taxes.” In applying the provisions of paragraph (1), “in case where the list of stockholders or the register of members has not been prepared, whether the change of title holder shall be determined by the documents concerning the shareholders, etc. submitted to the head of the tax office having jurisdiction over the place for tax payment

B) Even if Article 45-2(3) of the former Inheritance Tax and Gift Tax Act intends to evade taxes by stating the name of the owner on the statement on the change of stocks, etc., differently from the actual owner, the legislative intent of the said provision is to supplement the problems that could not be applied to the register of shareholders or the register of members in itself, and even in such a case, to levy gift tax. In full view of the legislative intent and the above Article 45-2(1) of the former Inheritance Tax and Gift Tax Act clearly limits the scope of “where the list of shareholders or the register of members is not prepared” to “where the list of shareholders or the list of members is not prepared,” even if the name of the owner is entered differently from the actual owner, if the list of shareholders is entered in the statement on the change of stocks, etc., the gift tax may not be imposed on the nominal owner by applying the legal provision of this case (see Supreme Court Decision 2011Du1099, May 16, 2014).

Meanwhile, as a matter of principle, the tax authority bears the burden of proving the existence and the tax base of the taxation requirement (see, e.g., Supreme Court Decision 2011Du9935, May 16, 2014). To impose gift tax under Article 45-2 of the former Inheritance Tax and Gift Tax Act by deeming the title trust of shares as a donation, the tax authority should either prove “the fact that the register of shareholders was made and the fact that the actual owner and the nominal owner are different” as the requirement under Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, or prove “the fact that the register of shareholders was not made and the fact that the name of the owner is different from the actual owner,” as the requirement under paragraph (3) of

C) In light of the above legal principles, in light of the following circumstances, it is difficult to conclude that the shareholder registry of the SS existed at the time of title trust of the two shares held in title trust, and furthermore, it is difficult to conclude that the transfer of the two shares was made in the name of the Plaintiffs related to the two shares. Therefore, even if the SS’s statement on the change of shares (Evidence No. 9) is indicated as the 2 shares, the Defendants may not impose gift tax on the above Plaintiffs by applying the main text of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act as well as Article 45-2(3) of the same Act. Accordingly, the acquisition of the shares in this case on a different premise is deemed to have been made on April 14, 2009, which is the date of conclusion of the contract, and on the disposal of the shares in this case as the evaluation base date, the remaining issues of the 2 shares in this case (including additional tax) are unlawful without any further examination by the Plaintiffs related to the shares in this case.

(1) A stock company shall state the name and address of its shareholders, and the type and number of shares held by each shareholder when it issues shares (Article 352(1) of the Commercial Act). In addition, when a stock company distributes shares, it is obligated to prepare and keep a list of shareholders stating the names, addresses, etc. of its shareholders as right holders on the basis of suspension of entry in the list of shareholders for a certain period of time or on the basis of a certain date (Article 354(1) of the Commercial Act). Under the tax law, a domestic corporation is obligated to prepare and keep a list of shareholders stating the names, addresses, etc. of its shareholders (Article 118 of the Corporate Tax Act). In the case of a so-called one-called company or its family members holding all outstanding shares, it is difficult to say that there is no practical need to prepare and keep the list of shareholders despite the foregoing provisions of the Commercial Act and other tax laws (see, e.g., Supreme Court Decision 2016Du5049, May 17, 2000).

② SS only submitted a statement of changes in the status of stocks at the time of filing a corporate tax on March 30, 2010 and did not submit a list of shareholders. However, in light of the fact that SS entered into a transfer agency contract with the National Bank Co., Ltd. on November 6, 2009, even if SS did not transfer the list of shareholders and related affairs to the National Bank after the conclusion of the above contract, it seems that the above contract was not concluded under the circumstances where there was no list of shareholders.

③ Even if S entered the register of shareholders as above, in order to consider the title trust of 2 shares as a gift pursuant to the taxation requirements under the main sentence of Article 45-2(1) of the former Inheritance Tax and Gift Tax Act, the Defendants, as the tax authorities, should prove that the title transfer of 2 shares was made in the name of the SS’s shareholders related to 2 shares. However, in light of the fact that Article 45-2(3) of the Inheritance Tax and Gift Tax Act provides that “where the list of shareholders is not prepared, the transfer is determined based on the statement on the change of shares submitted to the head of the tax office having jurisdiction over the place of tax payment,” it is difficult to conclude that the statement on change of shares was submitted to the tax authorities, and furthermore, it is difficult to conclude that the entry of the register of shareholders was made until the change of shareholders was made to the Plaintiffs related to 2 shares on the premise of the preparation of the list of shareholders. Moreover, there is no data to acknowledge that the change of shareholders was made in the future (in particular, the Defendants’ disposal of shares in question 2 shares).

3. Conclusion

Therefore, the part of the disposition of this case regarding the tax amount exceeding the legitimate tax amount arising from the title trust of the 1st issue among the dispositions of this case should be revoked, and thus, the plaintiffs' claims shall be accepted only for the grounds for revocation, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is so unfair as to accept the plaintiffs' appeal partially and the judgment of the court of first instance shall

[Attachment 1]

List of Imposition of Gift Tax

(unit: including source and additional tax)

(Disposition Office)

5) Date of disposition

The amount of tax donated on March 27, 2009

April 14, 2009

Amount of gift tax

Original Tax Amount

6) Political tax amount

IsaA

J Head of J Tax Office

February 17, 2014

00

00

00

leG

February 19, 2014

00

00

00

AB

K Director of the Korean Tax Office

February 15, 2014

00

00

00

NewCC

L of the Tax Office

February 18, 2014

00

00

FF

February 18, 2014

00

00

00

HaH

February 18, 2014

00

00

Transmitt.D

February 18, 2014

00

00

00

E

MM Head of the tax office

February 18, 2014

00

00

[Attachment 2] The omission of the cost-sharing table

[Attachment 3]

Relevant statutes

▣ 구 상속세 및 증여세법(2010. 1. 1. 법률 제9916호로 개정되기 전의 것)

Article 45-2 (Presumption of Donation of Title Trust Property)

(1) Where the actual owner and the nominal owner are different in property (excluding land and buildings; hereafter the same shall apply in this Article) which requires a registration, etc. for the transfer or exercise of rights, the value of such property shall be deemed donated to the actual owner by the nominal owner on the date when it is registered, etc. to the nominal owner (where the property is subject to a change of ownership, referring to the date following the last day of the year following the year in which the date of acquisition of ownership falls), notwithstanding Article 14 of the Framework Act on National Taxes:

1. Where any property is registered in another person's name without the purpose of tax avoidance, or transfer is not made in the name of the actual owner who acquired the ownership;

(2) Where any property has been registered, etc. under another person's name, and a transfer of ownership is not made under the name of the actual owner, and where the name of stocks, etc. is not converted under the name of the actual owner, it shall be presumed that there exists an object of tax avoidance: Provided, That the same shall not apply where the transferor files a report on the change of ownership along with a return on the tax base of transfer income under Articles 105 and 110 of

(3) In the application of the provisions of paragraph (1), where a register of stockholders or an employee has not been prepared, it shall be judged whether a transfer is made in accordance with the documents concerning stockholders, etc. submitted to the head of tax office having jurisdiction over the place of tax payment pursuant to the provisions of Articles 109 (1) and 1

(6) The term "taxs under paragraphs (1) 1 and (2) means the national tax and local tax under subparagraphs 1 and 7 of Article 2 of the Framework Act on National Taxes and the customs under the Customs Act.

Article 47 (Taxable Amount of Gift Tax)

(1) The taxable amount of gift taxes shall be the sum of the donated property under the provisions of this Act as of the date of donation [excluding the value of the donated property under the provisions of Articles 40 (1) 2, 41-3, 41-5, and 42 (4) (hereinafter referred to as the " donated property excluded from summing-up] minus the amount acquired by the donee as debts (including debts prescribed by Presidential Decree, such as debts, etc. related to the relevant donated property) secured by the relevant donated

(2) Where the aggregate of the value of donated property received from the same person (where the donor is a lineal ascendant, including the spouse of such lineal ascendant) within 10 million won from the relevant donation date, such value shall be added to the taxable value of donated property: Provided, That this shall not apply to the donated property

Article 55 (Tax Base and Taxable Minimum Amount of Gift Tax)

(1) The tax base of gift tax shall be an amount obtained by subtracting the fees for appraisal of donated property as prescribed by the Presidential Decree from the amount falling under one of

1. In the legal fiction of title trust property under the provisions of Article 45-2, the amount of the relevant title trust property;

2. For the donated property excluding any summing-up, the amount obtained by deducting 30 million won from the donated property concerned.

3. In other cases than subparagraphs 1 and 2, the amount obtained by subtracting the amount under the provisions of Articles 53 and 54 from the taxable amount of gift taxes levied under the provisions of Article 47 (1).

Article 60 (Principles, etc. of Appraisal)

(1) The value of property on which an inheritance tax or gift tax is levied under this Act shall be the market price as of the date the inheritance commences or the date of donation (hereinafter referred to as the "date of appraisal"). In such cases, the value appraised by the method of appraisal stipulated in Article 63 (1) 1 (a) and (b) (excluding cases falling under the provisions of Article 63 (2))

(2) The market price under the provisions of paragraph (1) shall be the price which is generally accepted in cases of free trade between many and unspecified persons and which is recognized as the market price under the conditions as prescribed by Presidential Decree.

(3) In applying the provisions of paragraph (1), where it is difficult to compute the market price, the price assessed according to the methods prescribed in Articles 61 through 65 shall be based on the type, scale, transaction conditions, etc. of the relevant

(4) In applying paragraph (1), the value of the donated property added to the value of the inherited property pursuant to Article 13 shall be based on the market price as of the date of donation.

Article 68 (Tax Base Return of Gift Tax)

(1) A person liable to pay the gift tax pursuant to the provisions of Article 4 shall report the taxable value and tax base of the gift tax pursuant to the provisions of Articles 47 and 55 (1) to the head of the competent tax office having jurisdiction over the place of tax payment within three months from the last day of the month to which the date of donation belongs under the conditions as prescribed by the Presidential Decree: Provided, That the time limit for filing a report on the settlement of the gift tax pursuant to the listing of unlisted stocks or the merger of corporations pursuant to

(2) In cases under paragraph (1), a report shall be submitted to the head of a tax office having jurisdiction over the place of tax payment, along with the kinds, quantity, appraised values of donated property, documents proving various deductions, etc. prescribed by Presidential Decree.

▣ 구 상속세 및 증여세법 시행령(2010. 2. 18. 대통령령 제22042호로 개정되기 전의 것)

Article 49 (Principles, etc. of Assessment)

(1) The term "those recognized as the market price as prescribed by Presidential Decree, such as the expropriation and public sale price and the appraised price, etc. under Article 60 (2) of the Act means the price confirmed in accordance with any of the following subparagraphs where a sale, appraisal, expropriation, auction (referring to an auction under the Civil Execution Act; hereafter the same shall apply in this paragraph) or public sale (hereafter referred to as "sale, etc." in this paragraph) is made within six months (three months in the case of donated property; hereafter the same shall apply in this paragraph) before and after the base date of appraisal: Provided, That even if there are sale, etc. during the period not falling under the assessment period, the price of the relevant sale, etc. may be included in the price confirmed in accordance with the following subparagraphs after consultation with the Evaluation Deliberative Committee under the provisions of Article 56-2 (1), if it is deemed that there are no special circumstances of price fluctuation in view of the management status of the company issuing stocks during the period not falling under any subparagraph of paragraph (2):

1. If the fact of sale and purchase of the relevant property exists, the transaction price: Provided, That this shall not include cases where the transaction price is deemed objectively unfair from the person with a special relationship as provided in Article 26 (4);

▣ 구 국세기본법(2010. 1. 1. 법률 제9911호로 개정되기 전의 것)

Article 39 (Secondary Liability for Tax Payment of Contributors)

(1) Where the property of a corporation (excluding a corporation which has listed its stocks on the securities market under Article 9 (13) 1 of the Financial Investment Services and Capital Markets Act) is insufficient to cover the national taxes, additional dues, and disposition fee for arrears that the corporation has imposed or is to pay, any of the following persons as of the date on which the liability to pay national taxes is established shall be subject to the secondary liability to pay the shortage: Provided, That in the case of an oligopolistic stockholder under the provisions of subparagraph 2, it shall not exceed the amount calculated by multiplying the amount obtained by dividing the shortage by the total number of outstanding stocks (excluding nonvoting stocks; hereafter the same shall apply in this Article) or total amount of investment of the corporation, by the number of oligopolistic stockholders owned (excluding non-voting stocks; hereafter the same shall apply in this Article) or the amount of investment (in the case of the shareholder of the Republic of Korea, the number of stocks or investment by the shareholder of the Minister of Foreign Affairs and

1. General partners;

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 50/100 of the total issued stocks or total investments of the relevant corporation;

(b) An honorary chairperson, president, vice president, senior managing director, managing director, director, or any other person who actually controls the management of the corporation regardless of the name thereof;

(c) Spouse (including any person having a de facto marital relation) of the persons as referred to in items (a) and (b) and lineal ascendants and descendants sharing their livelihood with them;

Article 47-2 (Additional Tax on Non-Filing)

(1) Where a taxpayer (excluding those exempted from liability for tax payment under Article 29 of the Value-Added Tax Act) fails to file a tax base return under the tax-related Acts within the statutory due date of return, the amount of tax calculated under the tax-related Acts (including corporate tax on capital gains from land, etc. under Article 5-2 of the Corporate Tax Act in cases of corporate tax, and the amount added under Article 27 or 57 of the Inheritance Tax and Gift Tax Act in cases of inheritance tax and gift tax, respectively, and referring to the amount of tax paid under Articles 17 and 26 (2) of the Value-Added Tax Act in cases of value-added tax; hereafter in this Section, the same shall apply) shall be added to the amount of tax payable or deducted from the amount of tax payable (hereafter in this paragraph, referred to as the "amount of general non-reported penalty tax"): Provided, That where a person subject to double-entry bookkeeping by double-entry bookkeeping prescribed by Presidential Decree (hereafter in this Section, referred to as the "person subject to double-entry bookkeeping") or a corporation fails to file a tax base return.

(2) Notwithstanding the provisions of paragraph (1), where there is a tax base (referring to the amount of tax payable provided for in Articles 17 and 26 (2) of the Value-Added Tax Act in cases of value-added tax; hereafter the same shall apply in this Section) without filing a return in an unfair manner (referring to the manner prescribed by Presidential Decree, which is a violation of the duty to report the tax base or amount of national tax on the basis of the concealment or pretending of all or part of the fact that serves as the basis for calculating the tax base or amount of national tax; hereafter the same shall apply in this Section), the aggregate of

1. The amount of additional tax on a non-reported tax base in an unjust manner: An amount equivalent to 40/100 of an amount calculated by multiplying the ratio of an amount equivalent to the non-reported tax base in an unjust manner (hereafter in this paragraph, referred to as "non-reported tax base") to the tax base by the calculated tax amount (hereafter in this paragraph, referred to as "additional tax on non-reported return"): Provided, That where a person subject to double-entry bookkeeping or a corporation fails to file a tax base return of income tax or corporate tax, it shall be the larger of an amount calculated by multiplying the amount of penalty tax on non-reported return by 14/10,000, the amount of income related to the non-reported tax base (hereafter in

1) QQQ의 상호는 주식회사 ○○로, RRR의 상호는 주식회사 ○○, ○○ 주식회사로 각 변경되었다.

2) 12.5% (=5,113,598 shares/40,850,777 shares) of the shares allocated to PP is excluded from the shares allocated to PP.