(영문) 대법원 2020.6.25.선고 2019두36971 판결

1. The part of the judgment of the original court regarding the defendant's failure shall be reversed, and the judgment of the first instance as to this part shall be revoked, and this part of the lawsuit shall be dismissed.

2. The part concerning the plaintiff's failure in the original judgment

A. On July 10, 2009, the portion exceeding KRW 1,013,687,176 among the disposition imposing gift tax on the donated portion as of July 10, 2009, the portion exceeding KRW 38,196,312 among the disposition imposing gift tax on the donated portion on January 20, 201, and the portion exceeding KRW 397,614,739 among the disposition imposing gift tax on the donated portion on July 10, 201, is reversed, and the judgment of the first instance on this portion is revoked, and this part of the lawsuit is dismissed;

B. The portion of deemed donation on December 28, 2007, the portion of deemed donation on December 28, 2009, the portion of deemed donation on December 28, 201, the amount of deemed donation on December 28, 2010, each disposition imposing gift tax on the portion of deemed donation on December 28, 201, and each disposition imposing gift tax on the portion of deemed donation on July 10, 2009, and each portion of imposing gift tax on July 10, 201, are reversed, and this part of the case is remanded to the Seoul High Court.

3. The remaining appeals by the plaintiff are dismissed.

Reasons

The grounds for appeal are determined.

1. Case summary

According to the reasoning of the judgment of the original court and the record, the following facts are revealed.

A. From June 14, 2013 to June 17, 2014, the Busan Regional Tax Service conducted a gift tax investigation with respect to the Plaintiff, based on the fact that the Nonparty, who is the representative director of the SCP and the largest shareholder, held the title trust with respect to the Plaintiff as to the total amount of 3,087,221 shares of the SCP shares acquired under the Plaintiff’s name from 2007 to 2011 (hereinafter “SCP shares”), and calculated the value of donation with respect to the total amount of 3,087,62,052 won as of the date of closure of the respective list of shareholders as indicated below. Furthermore, the Busan Regional Tax Office calculated the value of the gift with respect to the Plaintiff’s total amount of 3,087,62,052 won as of the date of donation on the date of closure of the respective list of shareholders.

C. According to the results of the investigation conducted by Busan Regional Tax Office, the Defendant corrected and notified the Plaintiff on July 10, 2014 and notified the total amount of KRW 2,864,303,420 (hereinafter “original disposition”).

D. The Plaintiff filed an appeal with the Tax Tribunal on September 1, 2015, and the Tax Tribunal rendered a decision to partially accept the Plaintiff’s claim on the grounds that: (a) the total amount of KRW 160,480,000 used credit card payments in September 1, 2010 was the objective source of funds to the Plaintiff; or (b) the Plaintiff and the Nonparty were the livelihood funds jointly used by the Nonparty; (c) the additional loans of KRW 158,00,000 from September 19, 2000 and the additional loans of KRW 100,000,000 from June 27, 2011 were insufficient to establish that the repayment was made on behalf of the Nonparty (hereinafter “each of the instant dispositions”).

E. The Plaintiff filed the instant lawsuit against the Plaintiff. Of each of the instant dispositions, the first instance court revoked each of the instant dispositions on the ground that: (a) even though the fact of title trust was recognized as a fact of title trust; (b) partially overlapping the legal fiction of title trust donation; and (c) in the case of relevant parts, such as the acquisition fund of apartment buildings and the amount of credit card usage, part of the Defendant’s proof on the value of the acquired property or the amount of the debt repayment; (d) the Plaintiff cannot calculate the lawful amount of tax imposed on the Plaintiff on the sole basis of the materials submitted until the closing of argument. On the other hand, the lower court revoked all of the instant dispositions on the ground that: (a) the part exceeding KRW 49,029,949, out of the amount of credit card usage payment in 2008; and (b) the remaining part of each disposition was unlawful; and (b) the lower court dismissed the Plaintiff’s remaining claim on the ground that each of the dispositions was lawful.

F. Meanwhile, in accordance with the purport of the lower judgment on June 20, 2019, following the filing of the instant appeal, the part against the Defendant of the lower judgment among each of the instant dispositions, and the increased tax amount due to adding the donated property to the taxable value of the secondary donated property within ten years, namely, the portion exceeding KRW 1,013,687,176 among the disposition imposing gift tax on the portion of the gift on July 10, 2009; the portion exceeding KRW 38,196,312 among the disposition imposing gift tax on the donated property on January 20, 2010; the portion exceeding KRW 397,614,739, among the disposition imposing gift tax on the portion of the gift on July 10, 2011.

2. Determination ex officio as to the part that the Defendant revoked after filing an appeal among the instant lawsuit

If an administrative disposition is revoked, such disposition shall become null and void, and no longer exists, and a lawsuit seeking revocation against which an unexistent administrative disposition is filed is unlawful as it has no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012).

Examining the factual relationship in light of the aforementioned legal principles, the defendant, after filing the appeal of this case, can be found to have revoked ex officio the part against the defendant of the judgment below among each of the dispositions of this case in accordance with the purport of the judgment of the original court. As such, the part of the lawsuit of this case revoked as above is seeking revocation of a disposition without the validity of the lawsuit of this case, and thus, it became unlawful.

3. As to Plaintiff 1’s ground of appeal No. 1, citing the reasoning of the judgment of the court of first instance, the court below acknowledged that the Plaintiff liveded with the Nonparty, the title truster, on the premise of marriage from 2012. The Plaintiff served as an insurance manager from 2010 to 2013. The Plaintiff’s report revenue of global income tax was merely a total of KRW 47,073,280. The fact that the source of the Plaintiff’s purchase fund of the instant SCP stocks was a provisional payment amount received from EM MF Co., Ltd. established by the Nonparty’s entire investment by the Nonparty. The Plaintiff was also ordered to trade the instant SCP stocks in a foreign country, which was staying in the Republic of Korea. In light of the reasoning of the judgment above, the court below determined that the Plaintiff was entrusted with the instant stocks in the name of the Nonparty.

Examining the reasoning of the original judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on title trust beyond the bounds of the principle of free evaluation of evidence against the logical and empirical rules, or by misapprehending the legal doctrine on title trust.

4. As to the ground of appeal Nos. 2 through 4 by the plaintiff

A. Relevant provisions and legal doctrine 1) Article 45-2(1) main text of the former Inheritance Tax and Gift Tax Act (amended by Act No. 1357, Dec. 15, 201; hereinafter referred to as “Inheritance Tax and Gift Tax Act”) provides that if the actual owner or title holder of an asset requires the transfer of rights or the transfer of ownership, etc. (hereinafter referred to as “transfer of ownership”) is different from those of the actual owner, the value of the relevant asset may be deemed donated to the actual owner on the date when the first transfer of ownership, etc. is deemed necessary, notwithstanding Article 14 of the Framework Act on National Taxes (see, e.g., Supreme Court Decision 200Do1628, Dec. 31, 2007; 200Do45-2, Sept. 1, 2010).

B. According to the reasoning of the judgment of the original court and the record, the following facts are revealed. The non-party purchased 1,300 shares on October 16, 2007 by using the △△△△ account in the name of the plaintiff (hereinafter referred to as 'the 1st share') and then completed the review of the above shares in the name of the plaintiff around November 9, 2007. However, the non-party should first purchase 6,120 shares from November 19, 207 to November 207, 207, and then sell 207 shares to the account of the △△△△△△△△△△, which were newly acquired by the non-party to the 2nd shares. The non-party should first purchase 6,120 shares from the 2nd shares to the 2nd 20th 6th 6th 20 CP shares and then sell the shares to the 2nd 20 CP shares.

Nevertheless, the lower court determined that the entire imposition of gift tax on December 28, 2007, on the sole ground that it is difficult to view the secondary shares as the shares re-acquisition by using the sales proceeds of the primary shares, without examining whether the primary shares remain as the shares already subject to the donation among the secondary shares, and without determining whether the primary shares were excluded from the subject of the donation. In so doing, the lower court erred by misapprehending the legal doctrine on the proposal of donation under the legal provisions of this case, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

C. According to the reasoning of the original judgment and the record on the shares deemed donated on July 10, 2009, the non-party can find the following facts. (A) The non-party purchased 7,800 shares of the SCP shares (hereinafter referred to as "third shares") from August 1, 2008 to August 6, 2008, using the account in the name of the plaintiff, and completed the transfer of ownership in the name of the plaintiff on December 28, 2008. (B) After the non-party sold 5,683 shares of the shares among the shares purchased on May 7, 2009 through the △ account of △△, and purchased 8,750 shares of the SCP shares from May 11, 2009 to June 29, 2009 to the purchase price of the shares purchased on May 6, 2005, 2063605, 2009

다 ) 주주 명부 폐쇄일인 2009. 7. 10.경 계좌에 남아 있는 SSCP 주식은 10,867 주 이고 , 당시그 와 별도로 원고 명의로 된 ◇ 계좌에 3,960주, 원고 명의 로 된 ☆☆☆☆계좌에 139,203주의 SSCP 주식이 각각 남아 있었다(이하 위 각 주식 을 합한 154,030주 를 '4차 주식'이라 한다).

2) Examining the foregoing facts in light of the relevant provisions and legal principles as seen earlier, since the SSCP shares 2,117 shares remaining after being sold through the account among the third shares are the shares under title trust that were already subject to a donation around December 28, 2008, 151,913 shares, excluding those of the fourth shares, constitute the shares subject to a new donation on the basis of July 10, 2009, which were the date of closing the relevant shareholders’ list. Furthermore, from among the 151,913 shares that were newly subject to a donation, 6,000 shares purchased on May 11, 2009 and re-acquisition in the same name using the proceeds of selling the third shares that were subject to the proposal of the donation, the taxation of this case may be imposed only on only 6,00 shares, excluding 145,913 shares.

Nevertheless, solely based on its stated reasoning, the lower court determined that the entire part of KRW 1,013,687,176, among the disposition imposing gift tax on the constructive gift on July 10, 2009, was lawful. In so doing, the lower court erred by misapprehending the legal doctrine on the constructive gift under the instant legal provisions, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

라. 2009. 12. 28.증여의제분 주식에 관하여 1 ) 원 심판결 이유 와 기록에 의하면, 다음과 같은 사실을 알 수 있다.가 ) 앞서 본 바와같이 4차 주식은 △ △△△ 계좌에 139,203주, 계좌에 10,867 주 , 계좌에 3,960주 합계 154,030주가 남아 있었는데, 2009.7. 10. 경 그중 151,913 주에 대해 원고 명의로 새로 명의개서를 마쳤다.나 ) 이후 소외인 이원고 명의로 유상증자에 참여하여 받은 SSCP 주식은 2009. 8. 19. □□□□ 계좌 에2,153주, 계좌에 785주가 각각 입고되었다.다 ) 소외인 은 2009.11.20.부터 2009.12.28.까지 원고 명의로 된 △△ △△△ 계좌 를 통해 SSCP 주식의 매수와 매도를 여러 차례 반복하다가 마지막에 위 계좌에 있는 SSCP 주식 을 전부매도하였다.라 ) 주주 명부 폐쇄일인 2009. 12.28.경 원고 명의 SSCP 주식은 △△△△△△ 계좌에 0 주 , □□□□ 계좌에 13,020주, ◇ 계좌에 4,745주가 남아 있었다(이하 위 각 주식 을 합한 17,765주 를 '5차 주식'이라 한다).

2) Examining the foregoing facts in light of the relevant provisions and legal principles as seen earlier, 14,827 share of the SCP shares remaining in the shares and accounts among the 4th shares, which were the title trust shares subject to donation around July 10, 2009, and 2,938 share shares, excluding the 5th share shares, constitute the shares subject to new donation on the basis of around December 28, 2009, which were the closing date of the pertinent list of shareholders. Accordingly, only 2,938 share shares may be subject to taxation pursuant to the instant legal provisions.

Nevertheless, solely based on its stated reasoning, the lower court determined that the entire imposition of gift tax on the donated portion on December 28, 2009 was lawful. In so determining, the lower court erred by misapprehending the legal doctrine on the proposal of donation under the instant legal provisions, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

E. According to the reasoning of the judgment of the original court and the record, the following facts were revealed. 5th of December 28, 2010, the fifth shares were remaining in the OO account, and 4,745 shares were to be sold to the 2,153 shares (2 accounts) and 785 shares (2 accounts) under the Plaintiff’s name. 4th of July 10, 209, the lower court should have held that the shares were sold to the 3,00 shares (3,00 shares) under the Plaintiff’s name and the 6th of July 28, 2010, based on the following facts. 200, the lower court should have held that the shares were sold to the 20th of the 20th of July 15, 2010. 3rd of the CP shares (hereinafter “the 6th of the 20th of the 20th of the 20th of the 2010 shares”).

Nevertheless, solely based on its stated reasoning, the lower court determined that the entire imposition of gift tax on the donated portion on December 28, 2010 was lawful. In so determining, the lower court erred by misapprehending the legal doctrine on the proposal of gift pursuant to the instant statutory provisions, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

F. According to the reasoning of the original judgment and the record, the following facts are revealed as to the shares deemed donated on July 10, 201. (A) The 6th shares remains in the account 2000. However, on December 30, 2010, the Nonparty purchased and sold SSCP shares through the △△△△△△△ account in the name of the Plaintiff from March 3, 201 to July 5, 201, through the 200 account in the name of the Plaintiff from February 18, 2011 to July 4, 2011.

다 ) 주주 명부 폐쇄일인 2011.7. 10.경 △△△△△△ 계좌에 121,368주, ◇ 계좌 에 17,918 주의 원고 명의 SSCP 주식이 남아 있었다(이하 위 각 주식을 합한 139,286 주 를 ' 7 차 주식'이라 한다).

2 ) 위와 같은 사실관계를 앞서 본 관련 규정과 법리에 비추어 보면, 6차 주식 중에 위와 같이 ◇ 계좌를 통해 매도되고 남은 SSCP 주식 9,428주는 2010. 12. 30. 경 이미 증여 의제 대상이 된 명의신탁 주식이므로, 7차 주식 중 이를 제외한 129,858 주가 해당 주주명부폐쇄일인 2011.7. 10.경 을 기준으로 새로 증여의 제 대상이

Since shares constitute 129,858 shares, only 129,858 shares can be taxed pursuant to the legal provisions of this case.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the entire part of KRW 397,614,739, among the disposition imposing gift tax on the deemed donation on July 10, 201, was lawful. In so determining, the lower court erred by misapprehending the legal doctrine on the provision of donation under the instant legal provisions, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

G. According to the reasoning and record of the original judgment regarding deemed donation shares (1) on December 28, 2011, the following facts were revealed. As seen earlier, the 7th shares remains at 121,368 shares and 17,918 shares in the account. From July 10, 2011, the Nonparty purchased 129,858 shares in the Plaintiff’s name from August 10, 201 to September 28, 201, to 333,793 shares via the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, the Nonparty purchased 15,150 shares via the Plaintiff’s name, 15,201, and 15,015,000 shares shares via the Plaintiff’s name from August 10, 2011 to September 28, 2011.

C) On November 16, 201, the Nonparty: (a) transferred 450,000 shares of the SCP issued in the No. 7 No. 7 No. 2010 to another securities account; and (b) repeated purchase and sale of the SCP shares on several occasions through the No. 77 No. 201 from November 25, 201 to December 27, 2011. The Nonparty sold 17,781 shares of the SCP shares via the account from October 24, 201 to December 2, 2011. (d) around December 28, 2011, the date on which the shareholder list is closed, the Nonparty left 17,781 shares of the SCP shares via the account.

E) As seen earlier, in light of the relevant provisions and legal principles as seen earlier, the Plaintiff asserted that the Defendant should specify the shares subject to donation pursuant to the first in first in first in first in first in first in order. (2) In light of the relevant facts, the lower court should first consider the first in first in first in order to determine the timing and quantity of the 7th in first in first in first in order and then in accordance with the method deemed reasonable among the 8th in first in first in order to consider all the circumstances, such as the transaction party’s intent, etc., and the timing and quantity of the 7th in second in each securities account, and then in order to determine whether the number of shares subject to new donation, excluding the 7th in the 8th in which the 8th shares already were subject to donation, remains. If, as a result of the review, the lower court should have deliberated on whether the shares were already acquired under the name of the same person by using the 7th in which the 7th in which the 8th in stocks already was subject to donation was subject to a taxation under the instant provision.

Nevertheless, solely based on its stated reasoning, the lower court determined that the entire imposition of gift tax on the donated portion on December 28, 201 was lawful. In so determining, the lower court erred by misapprehending the legal doctrine on the proposal of gift pursuant to the instant statutory provisions, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

5. As to Plaintiff 5’s grounds of appeal, the lower court rejected Plaintiff’s assertion that: (a) in light of the above-mentioned circumstances, it is difficult to view that the profit margin on the stocks of the instant SCP, which the Nonparty was trusted by the Nonparty, constituted the Plaintiff’s income; and (b) it is difficult to conclude that the apartment acquisition fund 100 million won was the sale price of the instant SCP stocks, which was withdrawn from the account of △△△△△△△△△△△△△△△ on January 20, 2010; (c) the Plaintiff was unable to apply the presumption of donation of the funds for acquiring property under Article 45(1) of the former Inheritance Tax and Gift Tax Act because the Plaintiff was sufficiently able to obtain assets, such as apartment houses, at the time; (d) examining the relevant provisions and legal principles, contrary to what is alleged in the grounds of appeal, the lower court did not err in its judgment by misapprehending the legal doctrine on the presumption of donation of the funds for acquiring property under the name of the Plaintiff, as it did not have any other reason to recognize that the property right to impose the gift.

6. Conclusion

Therefore, among the judgment of the original court, the part on the imposition of gift tax that the defendant voluntarily canceled after the filing of an appeal shall be reversed. Since the Supreme Court is sufficient to render a direct judgment, the judgment of the first instance as to this part of the judgment shall be revoked, and this part of the lawsuit shall be dismissed. Of the judgment below against the plaintiff, the portion on the deemed donation as of December 28, 2007, among the part against the plaintiff, the portion on the deemed donation as of December 28, 2009, the portion on the deemed donation as of December 28, 201, the portion on the imposition of gift tax as of December 28, 201, each disposition on imposition of gift tax as of December 28, 201, each portion on the deemed donation as of July 10, 209, and each portion on the imposition of gift tax as to the portion on the donation as of July 10, 201, and this part of the lawsuit shall be remanded to the court below for further proceedings consistent with this Opinion.