Early High Court Decision 2015J 2463 ( October 12, 2015)

Even if shares owned by a religious organization are trusted in trust to the believers, they shall be subject to gift tax.

Inasmuch as a religious organization’s shares held by title trust could have been avoided the application of progressive tax rates on dividend income, secondary tax liability under the Framework Act on National Taxes, and deemed acquisition tax under the Local Tax Act, etc., and it seems that the application of the provisions on wrongful calculation, etc. was possible, the title trust of shares owned by the religious

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

The revocation of revocation of imposition of gift tax by the Seoul Administrative Court 2016Guhap54381

Red Occa and 3

OO Head of the tax office 2

o October 13, 2016

November 10, 2016

1. The plaintiffs' claims against the defendants are all dismissed.

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

Cheong-gu Office

Each gift tax imposition (including additional tax) stated in the attached Table 1 list that the Defendants against the Plaintiffs shall be revoked.

1. Details of the disposition;

A.O media Co., Ltd. (hereinafter referred to as “OV”) is a company that runs the general book and textbook publishing business on January 15, 1990.

B. On November 15, 2004, EO, who was in office as the representative director of the non-party company, transferred 60,000 shares of the non-party company owned by himself (hereinafter referred to as "share shares") to the officers and employees of the non-party company including the plaintiffs, and completed the transfer.

C. The Defendants: (a) order the Plaintiffs’ shares on the part of the non-party company’s actual owner on the part of the non-party company.

For reasons of being entrusted with trust, by applying Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007, hereinafter referred to as the "former Inheritance Tax and Gift Tax Act"), Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828 of Dec. 31, 2007,

D. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on April 20, 2015, but was dismissed on August 12, 2015.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs received the title trust of the shares, which is not a △△△△△△ group, not a △△△ group, and since the Gwan school △△△ group is exempt from taxation on practical profit-making business, there is no room to acknowledge the purpose of tax avoidance. Furthermore, it is difficult to acknowledge the purpose of tax avoidance. The Gwan school △△△ group is a corporation operated by the Gwan school △△ group for profit-making business, and the concerns that the non-party company or its officers and employees may suffer disadvantages when the non-party company becomes a corporation operated by the Gwan school △△△ group, and the non-party company was under title trust with the plaintiffs, who are new parties to the shares on the same grounds, such as the awareness that the non-party

B. Relevant statutes

Attached Form 2 is as listed in the relevant statutes.

C. Determination

1) The title truster of the issue shares

Although the Defendants asserted that the title truster of the shares at issue is △△△△△, it is insufficient to acknowledge the above alleged facts solely on the basis of the written evidence Nos. 2 through 17, and 19 through 24. However, the Plaintiffs are the title truster of the shares at issue as the △△△△△△△△△△△△△, and the Defendants also add the same content through a preparatory document dated October 5, 2016 as the grounds for disposition. Thus, if the additional grounds for disposition such as the above are allowed, the instant disposition based on Article 45-2(1) of the former Inheritance Tax and Gift Tax Act is lawful insofar as it satisfies the requirements set forth in the following

Therefore, the subject matter of a taxation disposition lawsuit is objective existence of the tax amount determined by the tax authority. As such, the tax authority may submit new data that can support the legitimacy of the tax base or tax amount recognized in the relevant disposition, or exchange and change the reasons within the scope that maintains the identity of the disposition, and it does not necessarily mean that the tax authority can determine the legality of the disposition only by the data at the time of the disposition or only claim the reasons for the disposition at the time of the disposition (see, e.g., Supreme Court Decision 2009Du1617, Jan. 27, 2011).

According to the aforementioned circumstances, the grounds for disposition added to the original grounds for disposition and ancillary reasons for the disposition of this case are as follows: (a) whether the ownership of the shares in question is deemed to be the actual owner of the shares in question in the future of the Plaintiffs; or (b) the legal evaluation of whether the ownership of the shares in question is deemed to be the △△△△△△△△△△ Group; and (c) not only differs from the basic facts that constitute the grounds for taxation; (d) thus, the addition of the grounds for disposition by the Defendants constitutes an addition or modification of the grounds for disposition made within the scope that maintains the identity of the disposition (see Supreme Court Decision 96Nu327

2) Whether there was no purpose of tax avoidance

As long as the fact of title trust is acknowledged, the claimant has the burden of proving that there was no purpose of tax avoidance. The nominal owner who bears the burden of proving the burden of proof has a clear objective of tax avoidance to the extent that there was no objective of tax avoidance in the title trust, and that there was no tax avoidance in the future at the time of the title trust or in the future, it shall be proved to the extent that the ordinary person is not doubtful, based on objective and correct evidence (see, e.g., Supreme Court Decision 2007Du17175, Sept. 8, 2011).

Article 3 of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006)

The provisions of paragraphs (1) and (2) stipulate that a non-profit domestic corporation shall levy corporate tax on the income accrued from profit-making business. Each statement in the Evidence Nos. 4 and 22 (including the serial number) alone is insufficient to recognize that there was a non-taxation practice to permanently exempt the above corporate tax, etc. from the religious organization. Rather, according to the evidence No. 18 of the non-party company’s 2003 business year, the non-party company’s non-indicted 18 has reached approximately KRW 9.3 billion. Even upon the plaintiffs’ assertion, the non-party company or its affiliated companies (excluding some affiliated companies that held stocks in the name of the Korean △△△△△△△△△△△△△△△△△△△△△) issued stocks of the non-party company or its affiliated companies (excluding some affiliated companies held stocks in the name of the Korean △△△△△△△△△△△△△△△△△△△△△△△△△△△, which was in title trust, could not be justified under the premise that the plaintiffs’s 100.

3. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed since they are without merit.

this decision is delivered with the assent of all Justices.