Busan District Court 201Guhap6401 (29. 2012.06)

Madern 201J 2391 ( October 07, 2011)

It is probable that it will avoid global income tax, etc. and constitutes a title trust for tax avoidance purposes.

(As in the judgment of the first instance court), it seems that there was a possibility that a considerable amount of global income tax, etc. may be avoided due to a stock title trust, and that there was no actual dividend payment, and thus, it is not different from the fact that the title trust was made for the purpose of tax avoidance as well as the presumed evasion of criminal proceeds.

2012Nu2405 Revocation of Disposition of Imposition of Gift Tax

JAA

Head of Suwon Tax Office

Busan District Court Decision 201Guhap6401 Decided June 29, 2012

January 23, 2013

February 22, 2013

1. The plaintiff's claim for revocation of the disposition imposing additional tax that is changed in exchange at the trial is all dismissed.

2. All of the appeals by the plaintiff concerning principal tax are dismissed;

3. The plaintiff shall bear the total costs of the lawsuit.

1. Purport of claim

On April 13, 201, the Defendant imposed 00 won on the Plaintiff, 200 won for gift tax of 2004, 000 won for gift tax of 2006, and 000 won for gift tax of 2006, and 000 won for gift tax of 2006, and 600 won for gift tax of 2004 for gift tax of 2004 as of December 4, 2012, and 000 won for additional tax for gift tax of 2006, and 00 won for gift tax of 2006 for gift tax of 2006, and 200 won for additional tax for gift tax of 206 for gift tax of 206 (the Plaintiff’s claim for additional tax of 2006 shall be amended in exchange for each part).

2. Purport of appeal

The judgment of the first instance shall be revoked. The imposition of KRW 000 (including additional tax, hereinafter the same shall apply) on the plaintiff on April 13, 201, 200, KRW 000 for the gift tax for the year 2006, KRW 000 for the gift tax for the year 2006, and KRW 00 for the gift tax for the year 2006, and KRW 00 for the gift tax for the year 2006 shall be revoked.

1. Details of the disposition;

A. NewD established the Plaintiff, and ① on December 21, 2004, established the EEE, and ② on May 31, 2006, with 10,000 shares issued by the Company, and ② on May 31, 2006, with 10,000 shares issued by the Company, issued 2,00 shares out of the shares, and ③ (3) on August 31, 2006, with 7,000 shares issued by the Company with 55,00 shares issued by the Company, and (4) on December 14, 2006, respectively nominal trust with 10,00 shares issued by the Company.

B. At the time of establishing F on September 25, 2006, newD trusted 10,000 shares issued by the Plaintiff among the 70,000,000 shares issued by the Plaintiff (hereinafter “the shares in this case”). The Defendant deemed that newD trusted the shares in this case to the Plaintiff for the purpose of tax avoidance, and on April 13, 201, the Plaintiff imposed tax on the gift in 2004 (including additional taxes, hereinafter the same shall apply) and ② on the gift in 2006, the gift tax in 2006, 300, 300, 2006, and 206, 2006, 2006, 206, 3006, 300, 2006, 3006, 206, 2006, 3006, 206, 2006, 306, 2006, 2006, 5.

D. The Plaintiff appealed and filed a request with the Tax Tribunal on July 4, 201, but the Tax Tribunal dismissed the Plaintiff’s request on October 7, 2011.

E. Afterwards, the Defendant imposed an additional tax of KRW 00 on the gift tax for the portion of 204 on December 21, 2004, and KRW 200 on May 30, 2006, and KRW 000 on the gift tax for the portion of 2006 and KRW 00 on August 31, 2006, and KRW 00 on the gift tax for the portion of 200, KRW 200 on September 25, 2006, KRW 00, KRW 00 on the gift tax for the portion of 206, and KRW 200, KRW 200 on the gift for the portion of 206, KRW 200, KRW 200 on the gift for 206, and KRW 206, KRW 300 on the gift tax for each of 206, and KRW 16,200 on the basis of imposition on the gift tax for the portion of 206.

[Grounds for Recognition] The entry into the non-contentious facts, Gap evidence 1, 2, and Eul evidence 1, 2, 3, 9, and 21, and 22 (including each natural disaster, hereinafter the same shall apply), and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) EE and F are corporations established and increased by the most recent payment, and there was no actual payment of stock price with respect to the instant stocks, and thus, the instant disposition restricting the amount of the stock price as gift is unlawful.

2) In order to avoid the presumption of criminal proceeds from the management of the illegal entertainment room, newD was under title trust with the Plaintiff, and the said company did not pay dividends, and it did not have any purpose of tax avoidance with respect to newD.

B. Relevant statutes

Paper in the Appendix

C. Determination

1) Determination as to the assertion that in the case of a lump sum payment, the provision on donation agenda cannot be applied

In the case of the fictitious payment of the stock price for temporary loan, which has the appearance of the payment for the stock price, immediately after the incorporation or the capital increase, and immediately withdraw the payment for the capital, and even if it is actually used as the most means of payment for the stock price, it is merely a subjective intention of the promoters or directors who make such payment, and the effect of the payment for the stock price, which constitutes a collective procedure such as the incorporation or the capital increase of the company, shall not be determined (Supreme Court Decision 9Du8039 delivered on March 27, 2001) due to such in-depth circumstances (Supreme Court Decision 9Du8039 delivered on March 27, 200), and in the case of the fictitious payment for the stock price, it is recognized that the effect of the payment for the stock price is recognized, and thus, in the case of title trust of the shares accrued therefrom, the provisions of Article 45-2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8830 delivered on December 31, 2007).

2) Determination as to the assertion that there was no purpose of tax avoidance

A) The legislative intent 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, thereby recognizing an exception to the principle of substantial taxation. Thus, if it is recognized that the title trust was made 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 readily concluded that there was "the purpose of tax avoidance" in such title trust. However, in light of the legislative intent as seen above, if the purpose of the title trust is not included in the purpose of tax avoidance, it cannot be determined that there was a “the purpose of tax avoidance” under the proviso of the said provision. However, inasmuch as there was no intention of tax avoidance, it cannot be deemed that there was no other purpose of tax avoidance, and the burden of proving that there was no intention of tax avoidance in this case is a person who asserts it (see Supreme Court Decision 2007Du19331, Apr. 9, 2009).

B) It is recognized that the purpose of this case was to avoid presumption of criminal proceeds upon considering the overall purport of the pleadings, as well as the witness evidence of this case from January 5, 2008 to September 10, 2008. Meanwhile, considering Gap evidence, Eul evidence Nos. 8, and evidence Nos. 8, the plaintiff's overall purport of the pleadings, and the plaintiff in collusion with Eul, the wife's representative director of the OO from January 2007 to October 2008, the plaintiff used 00 won a total of KRW 00 per month and embezzled it at will, and the plaintiff's new stocks were used from the corporation account of HM from January 5, 2008 to September 10, 2008, and it is not probable that the above new stocks were used for the purpose of embezzlement of HG, and that the new stocks were used for the purpose of 000 won, and that the new stocks were used for 00 won, the new stocks were not for the purpose of 2000 Busan EMM.

C) The Plaintiff, and the amount embezzled by the Plaintiff, etc., claimed that the amount of dividend income of the newD would be normally imposed, and in this process, no tax avoidance occurs, regardless of whether the name of the shares is the Plaintiff, regardless of whether it is newD. However, if the amount embezzled by the Plaintiff, etc. as corporate income is not leaked externally, it would be earned surplus available for dividends of the corporation, and if dividends are made with respect to such earned surplus, newD should be taxed on the whole dividends as global income as a single shareholder, and newD should be taxed on the total dividends as global income. In other words, the dividend income is divided in proportion to the shares of each of the Plaintiff and several persons including the Plaintiff, and as a result, the lower tax rate is applied to the global income tax subject to the global income tax subject to the progressive tax rate. Accordingly, the Plaintiff’s assertion is without merit.

D) Next, the Plaintiff asserts that, in the event that the dividends are actually made, the highest tax rate would be applied if the Plaintiff’s wage income and dividend income are combined, and thus, the latter would be lower than newD. However, as seen earlier, a person who is highly likely to avoid global income tax, etc. due to the title trust of the instant shares is not a newD, and thus, the Plaintiff’s global income tax avoidance does not affect the time of determining whether there exists the purpose of tax avoidance in the title trust of the instant shares. Accordingly, the Plaintiff’s above assertion is without merit.

마) 끝으로 원고는， 주식회사 EEEE과 주식회사 FF의 주식 지분 비율을 감안 하면 불법수익 환수 우려 때문에 명의신탁한 것이지 조세회피의 목적은 전혀 없었다고 주장한다. 살피건대， 을 제9， 19호증의 각 기재， 당섬 증인 이GG의 일부 증언에 변론 전체의 취지를 종합하면， 신DD이 주식회사 EEEE과 주식회사 FF을 설립할 당시 주식회사 EEEE의 주식을 20%， 주식회사 FF의 주식을 14.28%를 보유한 사실， 2005. 6. 2. 주식회사 EEEE의 주식 중 JJ 문KK 명의로 된 주식을 양수받아 본인 지분을 30%로 늘렸는데， 이때 이GG의 주식 지분은 50%여서 과점주주에 해당하게 된 사실， 그러자 신DD은 2006. 5. 30.과 2006. 8. 21. 두 차례에 걸쳐 주식회사 EEEE의 주식 65，000 주를 유상증자하면서 원고의 처인 김LL， 이GG의 지인인 최MM， 신DD의 직원인 최II， 신DD의 누나인 신NN에게 유상증자 분의 15.38%에 해당하는 주식을 배정 하고， 원고 13.8%， 신DD 13.07%， 이GG 11.53%를 배정하여 주주 7인 모두 14.29% 의 주식을 소유하도록 주식을 명의신탁한 사실， 주식회사 FF의 경우 원고， 원고의 손 위JJ인 이PP， 김LL， 원고의 동생인 고QQ， 원고의 처형 김RR， 최II 6인에게 명의신탁한 사실， 위 회사들의 총 자산 중 부동산이 차지하는 비율이 주식회사 EEEE 은 89.8%， 주식회사 FF은 87.69%인 사실을 인정할 수 있다. 위 인정사실에서 알 수 있는 다음과 같은 사정， 즉 ① 신DD이 오로지 불법오락실 운영에 따른 불법수익 환수 때문에 이 사건 주식을 원고에게 명의신탁한 것이라면，신 DD이 자신 명의로 주식을 전혀 보유하지 아니하고， 명의신탁한 주식의 관리를 위하여 명의수탁자의 수를 가급적 제한함이 상당함에도， 신DD의 본인 명의로 주식회사 EEEE과 주식회사 FF의 주식의 일부를 보유하였고， 원고와 이GG 외에도 여러 사람에게 주식을 분산하여 명의신탁한 점，② 소득세법 제94조 제1항 제4호， 같은 법 시 행령 제158조 제1항 제1호에 의하면， 총 자산 중 부동산이 차지하는 비율이 50%이상 인 법인의 주식 중 주주 1인과 그의 친족， 이해관계인이 보유하고 있는 주식의 비율이 50%이상언 과점주주인 경우 그 주식 양도에 관하여는 소득세법 제55조 제1항에 따른 일반세율(2006년 당시 8-36%)의 적용을 받게 되는데， 신DD은 이를 피하기 위하여 원고，이GG 외에 여러 사람에게 주식을 분산한 것으로 보이는 점 등에 비추어 보면， 이 사건 주식의 명의신탁에 조세회피의 목적이 없다고 할 수 없으므로， 원고의 위 주장도 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim in this case is dismissed due to the lack of reason, and the plaintiff's claim for revocation of additional tax is dismissed due to the lack of reason (the part seeking revocation of the disposition of imposition of additional tax in April 13, 201 is withdrawn from the previous trial due to the exchange change of the claim and the judgment of the first instance is invalidated) and the part claiming revocation of the principal tax except for the additional tax in the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed due to the lack of reason, and it is so decided as per Disposition.