Seocho 2012west 2610 (No. 28, 2012)

It is insufficient to view that there was an inevitable reason for stock title trust.

It is reasonable to view that there was a tax evaded when considering that there was an inevitable reason for the title trust of shares, although it is argued that the shares were held as a nominal director after being appointed as a nominal director, but it is insufficient to view that there was an inevitable reason for

2012Revocation of revocation of disposition imposing gift tax, 4485

ThisAAA

Head of Seocho Tax Office

May 22, 2013

June 21, 2013

1. The part that seeks to revoke the disposition of imposing a surcharge of KRW 000 among the lawsuits in this case shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition imposing gift tax of KRW 000 on the Plaintiff on December 17, 2011 shall be revoked.

1. Details of the disposition;

A. On October 201, the director of the Central Regional Tax Office of China issued a tax investigation on BB (hereinafter referred to as BB). On March 25, 2010, the director of the Central District Tax Office notified the Plaintiff of the taxation data on the reason that SongCC entrusted the title of BB’s shares issued BB (hereinafter referred to as “instant shares”) to the Plaintiff, and “B. Accordingly, on December 17, 2011, the Defendant notified the Plaintiff of the amount of tax in arrears pursuant to Article 45-2(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter referred to as “the Inheritance Tax and Gift Tax Act”) to the Plaintiff, the director of the Central District Tax Office of China notified the Plaintiff of the amount of gift tax of KRW 00 (including additional tax) and the amount of additional tax on KRW 300,000,000 and the Defendant received the said tax payment notice from the Plaintiff.

D. The Plaintiff appealed and filed a request for trial on April 18, 2012, but, on September 28, 2012, received a decision of dismissal from the Tax Tribunal on the ground that the period of request for trial was 90 days.

[Grounds for Recognition] The non-contentious facts, Gap evidence 7, 8, and 14 (including household numbers), and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

The plaintiff's resident registration record Kim Young-do, who was recorded as a person living together with his/her domicile on December 17, 201, received a tax payment notice from the plaintiff, and the plaintiff claimed a trial on April 18, 201 after the lapse of 90 days from the plaintiff, and the lawsuit in this case is unlawful.

B. Determination

(1) In the absence of special circumstances, when a postal item was sent by the registration process, and even if it was delivered to the recipient, it is good to view that the postal item was delivered at that time, and where the recipient or his family does not live in the place of the resident registration and only causes damage to the resident, etc., it is difficult to deem that the agency entrusted the authority to receive the delivery of the postal item to the resident, etc. as part of fact. Moreover, even if the recipient does not actually reside in the register of the resident, etc., it is not presumed that the postal item was delivered to the recipient, and the fact of arrival of the postal item must be proved by the disposal office (see Supreme Court Decision 97Nu8977, Feb. 13

(2) In full view of the overall purport of the arguments in the descriptions in the health unit, Gap evidence Nos. 1, 9, and 14, and Eul evidence Nos. 2 and 3, Kim Young-dong, and Kim Young-gu, the plaintiff is the mother of the plaintiff-friendly Kim Jong-dong, and the plaintiff is living together with OOOO-type 00 and 000 (OOOO) in the Nam-gu, Incheon, and has been living in the domicile of Kim Young-dong at the time of the notice of payment to professional farmers, and the plaintiff was living in the dormitory at the time of the notice of payment to professional farmers, and around March 2012, 2012, OO may recognize the fact that the plaintiff was seeking for a trial on April 18, 2012.

(3) According to the above facts, the plaintiff was only a moving-in report at the time of service of the tax payment notice, and the lagO did not have any evidence to deem that the plaintiff was delegated the authority to receive postal items from the plaintiff, and it cannot be deemed that the tax payment notice was served on the plaintiff. Accordingly, the plaintiff filed a claim for a trial within ninety days after the plaintiff filed a tax payment notice, and the lawsuit

3. Regarding the revocation of the disposition imposing additional dues

A. The plaintiff sought revocation of gift tax amounting to KRW 00, and according to Gap evidence Nos. 8 and Eul evidence No. 1-1, it can be acknowledged that the gift tax and additional tax are KRW 000, and additional tax is KRW 000,000, including additional tax KRW 00,000 on the statement of payment. Therefore, the subject of the plaintiff's claim for revocation is the gift tax and additional tax KRW 00 (hereinafter referred to as "the disposition in this case") and KRW 000,000.

Article 21 of the National Tax Collection Act provides that if national taxes are not paid by the due date, they are naturally arising pursuant to the provisions of law without the due process by the tax authorities, and the amount thereof is determined, and when the amount of the tax initially imposed is revoked or reduced, the additional dues are automatically cancelled or reduced, so the notification of the additional dues cannot be viewed as a disposition subject to appeal litigation (see Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, the part that seeks to revoke the disposition imposing the additional dues amounting to 32,211,420 among the instant lawsuit is lawful.

4. As to the disposition of this case

A. The plaintiff's assertion

As the Plaintiff took the title trust of the instant shares from SongCC to the nominal representative director of BB for the stabilization of management rights, there is no purpose of tax avoidance. Therefore, the instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) BB is a KOSDAQ-listed corporation.

(2) On March 11, 2010, BB decided to appoint the Plaintiff as a director at the board of directors on March 11, 2010, and on March 25, 2010, BB decided to issue capital increase in the method of allocating the Plaintiff to a third party.

(3) On March 25, 2010, SongCC borrowed KRW 000 from EO to the Plaintiff, and the Plaintiff paid the said money to BB as new shares acquisition price, and the Plaintiff acquired the instant shares and became the largest shareholder of BB (67%).

[Ground of recognition] Evidence A 2, Evidence 10 1, 2, 5, 6, and 8 (including household numbers), and the purport of the whole pleading

D. Determination

(1) The legislative intent of Article 45-2(1) of the 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. Therefore, if the title trust was recognized to have been made for any reason other than the purpose of tax avoidance, and it is merely a minor tax reduction incidental to the said title trust, it cannot be readily concluded that there had been such purpose of tax avoidance in the title trust. However, in light of the legislative intent of the above provision, only when the purpose of the title trust is not included in the purpose of tax avoidance, it cannot be deemed that there was no other purpose of tax avoidance, and it cannot be deemed that there was an intention of tax avoidance. In this case, the burden of proving that there was no purpose of tax avoidance. However, it can be proven that there was no purpose of tax avoidance by proving that there was no other purpose of tax avoidance, not the purpose of tax avoidance, and that there was no objective and objective evidence for the title trust or tax avoidance in the future (see, e.g., Supreme Court Decision 2000Du13940.

(2) We examine the instant case, and the Plaintiff: ① “BB’s management is unstable due to lack of stock holding, and thus, the Plaintiff is bound to undergo a non-contentious opinion in the accounting audit; ② after having taken office as a director under the name of BB upon the request of the SongCC, the Plaintiff asserted that the instant stocks were held in title trust; ② it is insufficient to deem that there was an inevitable reason in the title trust of the instant stocks solely due to such circumstance; ② rather, considering the fact that: (a) by the title trust of the instant stocks, the SongCC did not pay capital gains tax, securities transaction tax, inheritance tax, gift tax, etc. beyond the scope of the major shareholders of BB, the listed corporation; and (b) it is reasonable to deem that there was a avoided tax, and the instant disposition is legitimate.

5. Conclusion

If so, the plaintiff's claim is without merit, it is dismissed, and it is so decided as per Disposition.