Cho High-2016-Seoul Government-2445 ( November 14, 2016)

Whether the Plaintiff trusted the instant shares to a third party for the purpose of tax avoidance

It is reasonable to deem that the title trustee cannot be deemed a beneficial shareholder on the ground that the title trustee acquired and traded the instant shares, and that the Plaintiff is a title truster of the instant shares.

Donation of trust property under Article 41-2 of the Inheritance Tax and Gift Tax Act

2017Guhap54142

Ma-○

○ Head of tax office

oly 12, 2018

November 30, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The notification of the designation and payment of joint and several taxpayers of the gift tax amounting to KRW 32,013,770 (including additional tax) on the Plaintiff on February 1, 2016 shall be revoked.

1. Details of the disposition;

A. On November 16, 2002, the non-listed corporation established for the purpose of developing automatic measurement remote control system using electromagnetic waves, radars, etc. and manufacturing and selling related parts and equipment, the non-listed corporation established on November 16, 2002, and the non-listed corporation established on July 1, 2003, which is the location of the headquarters of the Han○○ Telecom (hereinafter referred to as “ Han○○ Telecom, dissolved on July 1, 2003; hereinafter referred to as “○○○ Telecom”) transferred the head office to ○○○○ 312, 00, ○○○○ 312, which is the location of the main office of the ○○○○○○ Telecom (hereinafter referred to as “Korea-○○ Telecom”). Around that time, the head office was transferred to ○○○○○ 312, which is the location of the headquarters

had been.

B. AA on December 31, 2003, equivalent to 11.05% of the shares issued by the non-party company in the register of shareholders of the non-party company (the face value of KRW 5,000 per share) (hereinafter “instant shares”)

been registered as a shareholder.

C. As a result, the ○○○○○○○○○ Office (hereinafter referred to as the “Investigation Office”) conducted an investigation of changes in stocks of the non-party company from June 1, 2015 to November 24, 2015 (hereinafter referred to as the “instant tax investigation”), it determined that the actual owner of the instant shares was the Plaintiff and notified the Defendant of the taxation data.

D. On February 1, 2016, the Defendant decided and notified AA of the gift tax of KRW 32,013,770 (including additional tax) on December 1, 2003 on the ground that the Plaintiff trusted the title of the instant shares to AA, and on the same day designated the Plaintiff as a joint and several taxpayer of the said gift tax of KRW 32,013,770 on the AA and notified the Plaintiff of the payment (hereinafter “the notice of designation and payment of the said joint and several tax obligor to the Plaintiff”).

Sector. ' Sector'.

E. The Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, and the Tax Tribunal dismissed the decision on November 14, 2016.

Facts that there is no dispute over the basis of recognition, Gap evidence 1, 2, Eul evidence 1 and the whole pleadings

Purport

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant did not prove that the Plaintiff was the actual shareholder of the instant shares. The Plaintiff established and operated the Han○○○ Telecom and did not participate in the defense industry after being detained in the military payment case around 2003. In order to assist the Nonparty Company’s shareholder by taking over the defense sector of the Han○○ Telecom, the Nonparty Company was the management adviser of the Nonparty Company and lent funds to the Nonparty Company, and the shareholders of the Nonparty Company did not directly acquire the shares of the Nonparty Company.

2) Even if the Plaintiff is the actual owner of the instant shares and is merely the nominal owner of AA, at the time of registering the instant shares in the name of AA, the Plaintiff and AA did not have an agreement on title trust, and there was no purpose of tax avoidance.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On the National Tax Service’s computer network, AA acquired the instant shares from BB on September 29, 2003 at KRW 5,000 per share, and around 2006, it appears that CCC, DD, and EE transferred them at KRW 5,00 per share.

2) The investigating authority found a sales contract (No. 4,200 won per share) on September 25, 2003, stating that AAA purchases the instant shares from BB on June 10, 2015, when the Plaintiff’s spouse held 90% of shares since 2007 and carried out the tax investigation on the ○○○○○○○ Co., Ltd. (hereinafter “○○○○○○○○○”) holding 10% of shares from 2011, and that BB purchased shares from 352,650,000 won per share (5,000 won per share) and on September 29, 2003, stating that AA purchases shares from ○○○○○○○○○○ Co., Ltd. (hereinafter “the instant contract”).

3) Meanwhile, in 2006, AA made 43,185 shares out of the shares of this case to CCC, 13,845 shares to DDR, and 13,500 shares to EE each share are to be sold in KRW 5,00 per share, and each share acquisition agreement (hereinafter collectively referred to as the “transfer agreement of this case”) is to be written on the payment date, the contract date, the number of shares transferred, the number of shares transferred, the purchase price, and all other contents except the purchase price are to be printed equally, and each contract is to be revised to be the address of AA.

4) On April 16, 2015, AA prepared a written confirmation that “No one has taken over the shares of this case during the year 2003 or transferred them during the year 2006, and there is no fact that DDR’s employees requested to affix their seals on the transfer contract of this case and received the relevant payments.” (No. 2, No. 1).

5) In the course of the instant tax investigation, AA made a statement regarding the acquisition and disposal of the instant shares on September 23, 2015 as follows.

6) The signature of the AA stated in the instant transfer agreement differs from that of the other documents, which is written in its form from that of the AA. In this regard, the AA prepared a confirmation that the AA did not prepare the instant transfer agreement and that the signature was not his/her own (No. 4, 1) on November 18, 2015 (No. 4, 1).

7) Upon the imposition of a gift tax on the ground of the title trust of the instant shares, AA filed an objection, and filed an appeal with the Tax Tribunal via which the Plaintiff filed an objection, and the Plaintiff had to re-enter the instant shares in the name of another person, and had known the fact that the Plaintiff acquired shares in the name of the Plaintiff (AA) by affixing a seal on the instant transfer contract, and the Plaintiff was merely nominal, and the Plaintiff sent the employee with the seal on the ground that there was no problem. The instant transfer contract was neither the instant form of the acquisition nor the Plaintiff made a change in the name of another person in advance, and therefore, the title trust was null and void.”

8) Meanwhile, as of December 31, 2006, the shareholder registry of the non-party company listed the non-party company as a shareholder holding 94,00 shares (amounting to 470,000,000, 14.74%) among the total shares issued on 637,800 shares, DD 52,645 shares (amounting to 263,225,000, 8.25 percent of shares), EE is 41,150 shares (amounting to 205,750,000, and 6.45 percent of shares). The shareholder registry of the non-party company listed on 31 December 2010 as a shareholder holding 41, 2000 shares (amounting to 470,000,0000,0000 shares, 14.731,134 shares) and held 205% shares of the Plaintiff’s representative director from July 19, 1993.

9) From June 200 to December 2003, EE is a full-time employee belonging to the Han○○○ Telecom, and worked as a Plaintiff’s driver upon receiving approximately KRW 2 million annual salary. EE acquired the shares of the non-party company on October 7, 2015 and paid the purchase price in cash to those other than AAA while acquiring the shares of the non-party company on October 7, 2006. AA made a statement that the purchase price of the shares was “the vehicle that the Plaintiff purchased from another person’s name with the purchase price of the shares.” After that, EA made a statement that the Plaintiff purchased the shares from AA and transferred the shares from the Investigative Agency to the Plaintiff, the Plaintiff was asked to submit reply and data on the reason that the Plaintiff acquired the shares from the Investigative Agency on October 27, 2015, and the Plaintiff purchased the shares from the server at the time of the Plaintiff’s submission of the list and the list of shares at the time of taxation.

○○ (EE) came to know of AA through the Plaintiff’s introduction, and was proposed to purchase shares owned by AA from the Plaintiff. There was no special reason to set the sales price at KRW 5,000 per share, and in general, the share price is KRW 5,000 per share. The Plaintiff and AAA had a friendly relationship with the Plaintiff.

AA had received approximately 6 million won server cars from the Plaintiff as retirement allowances, and it had been transferred to the contrary that AA would want to board the said vehicle, but did not receive the price, which was set off against the share purchase price.

In addition to the shares of the non-party company, ○○○○○○○○○○○ on October 15, 2009, 6,000 shares of the non-party company, 35,150 shares of the non-party company that it acquired were sold to ○○○○○○○○○○○○○○ on January 20, 201.

○○○○ Telecom by the end of 2003, which was affiliated with another company since 2004, but actually worked as the Plaintiff’s personal driver from 2000 to 2010. The Plaintiff was disadvantageous to the adviser or president, and worked at the Korean ○○○ and the Nonparty Company.

10) EE was present at this court as a witness and stated in the following manner:

11) AA on December 27, 2004, the server server automobiles that EE received from the Plaintiff as retirement allowances were imported in the name of the public-private partnership around February 2001 and first registered.

12) DDR served as an employee in charge of financial management when the Plaintiff operates the Han○○ Telecom as a representative director, and from March 1997 to October 2001, DDR served as the auditor of Korea ○○○○○○, as the representative director of Korea ○○○○ from March 2005 to June 2007, and thereafter served as a director or an internal director from March 2005, and became a major shareholder by acquiring the shares of Korea ○○○○○ from the Plaintiff to June 2005. DDR was present at this court as a witness and stated as follows.

○○ (DD) came to know of AA through the Plaintiff’s introduction, and the Plaintiff’s offer to purchase shares owned by AA would be good and would not be at least a loss. The determination of the purchase price as KRW 5,000 per share is based on the Plaintiff’s horses, and there is no fact that the Plaintiff consulted with AA on the terms of sale.

On March 20, 2006, the sales price of the above shares was changed in cash by AAA, and deposited KRW 98,300,000 from the Japanese bank account of ○○○○○○○○ in Korea, immediately, paid KRW 69,225,000 to AA in cash without a check. The above KRW 98,30,000,000, around October 2001, the principal lent KRW 100,000 to ○○○○○○ in Korea, but was repaid, and there was no loan certificate therefor.

○ The draft transfer contract of this case was prepared by the principal and signed and sealed AA, and then the principal received either eE or cCC’s apartment at the entrance of the apartment at the apartment site of AA with a written contract of EE or CCC. The draft of the transfer contract of this case was not aware of the purchase price of EE or CCC.

○ purchased 52,645 shares of the non-party company from AA, etc. around 2006, and on October 13, 2010, sold 10,650 shares to ○○○○○, 39,994 shares to ○○○○○, 2,001 shares to 3 persons, including private citizens.

The gift tax was imposed on the principal on the ground that the shares purchased from the ○ AA were nominal trust of the Plaintiff, and the amount of tax was low.

At the time of working as the representative director of ○○○ in Korea, ○○○ and the office of the non-party company frequently visited at the time of purchasing shares from AA, the non-party company managed the shareholders of the non-party company with the advice of the non-party company.

13) On March 20, 2006, at the branch office of ○○ Bank, the following transactions took place:

14) On June 10, 2015, DD was located in the office of ri○○○○○○○○○○○○○ at the time of the instant tax investigation. However, in relation to the reasons for the office’s existence and the reasons why the instant transfer contract was kept there, it did not have a contractual relationship, such as a labor contract, with ri○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and it had tried to perform the accounting work of ri○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and

15) The plaintiff did not have any record of being registered as a shareholder in the register of shareholders of the non-party company or recorded as an executive in the register of the non-party company. On July 22, 2003, the director of the general accounting division approved the non-party company's "the second public offering plan for employee stocks" as the chairperson in a document prepared by the director of the general accounting division around July 22, 2003 for his business report, and "the second public offering plan for employee stocks" stated "the grounds related to the non-party company's internal resolution: the chairperson's oral instruction ( July 4, 2003)", and the representative director of the non-party company approved this. In addition, the plaintiff kept his office in the non-party company two to three times a week and attended the representative director and the meeting. On May 12, 2011, ○○○○○ corporation attended the non-party company's representative and agreed on the ratio and acquisition price of the non-party company's management.

16) From the time of incorporation to August 31, 201 on the corporate register of the non-party company, the FF, registered as the representative director from August 10, 206 to December 4, 2009, stated that the Korea ○○○ stated that the Plaintiff was the Plaintiff’s company in the course of tax investigation.

Facts that there is no dispute over the basis of recognition, Gap evidence 4, Eul evidence 2-18 (including each number)

The purpose of each part of the testimony, as a whole, of the EE for witnesses and witnesses;

D. Determination

1) Whether title trust of the instant shares was held

In full view of the following circumstances known from the above facts, it is reasonable to view that the Plaintiff, as the actual owner of the instant shares, was in title trust to AA. This part of the Plaintiff’s assertion is rejected.

A) In the course of the tax investigation of this case, AA was merely lent the name at the Plaintiff’s request, but it did not actually acquire or transfer the shares of this case, and was not paid or paid the price for the shares of this case. There was no special reason or motive for AA to make a false statement that AA lent only the name of the shareholder to the Plaintiff even though the actual owner of the shares of this case was the actual owner of the shares of this case (AA alleged that the Plaintiff forged the instant contract concerning the acquisition of the shares of this case at the tax inquiry stage and did not have any agreement on title trust was made. However, according to the statement at the time of the tax investigation, AA did not know the fact that BB purchased the shares of this case from BB, and it was sufficiently recognized that AA consented to the Plaintiff’s use of the shares of this case as the purchaser of the shares of this case and delegated its authority accordingly. Accordingly, the above assertion is difficult to believe

B) According to the instant acquisition agreement, the transfer agreement, or the details of changes in shares reported to the National Tax Service, the AA purchased the shares in this case at face value and sold them again at face value after about two years and six months. It is very exceptional to sell the same face value as at the time of acquisition, even if the non-listed company invested more than KRW 35 million in order to acquire the shares at the early stage of the establishment of the non-listed company, without any profit and loss remaining after several years.

C) Unlike the seal affixed by AA on the instant transfer contract, the instant transfer contract is signed by the name side of the AA, and its signature is different from the actual signature of the AA. This is, upon the Plaintiff’s request, sealed the seal on the instant transfer contract. However, even though the instant transfer contract was signed upon the Plaintiff’s request, there was no specific knowledge of the acquisition of the instant shares, and there was no fact that the written contract was prepared without being specifically aware of the acquisition of the instant shares, and is consistent with the AA’s statement

D) As examined below, it is difficult to view that EE and DD actually paid the purchase price of stocks to AA, which is consistent with the statement of AA that the purchase price of stocks of this case was not paid since it was lent only to the shareholder’s name.

(1) The EE indicated that it received 6 million won from the Plaintiff as a retirement allowance after retirement from the Han○○ Telecom around the end of 2003. However, it is exceptional that the EE was paid a retirement allowance equivalent to 3 years’ pay after receiving a retirement allowance from a driver for about 2 million won a year and 3 years and 6 months since he/she worked as a driver. The EE was an employee of the Han○○ Telecom who is not the Plaintiff, and the duties performed after being employed by the corporation were the Plaintiff’s personal driver from 2000 to 2010. Thus, it is difficult to view that EE retired from Han○○ Telecom only formally changes its affiliation, and it is difficult to view that there was a substantial retirement. In addition to the above, it is difficult to believe that the Plaintiff personally paid the retirement allowance to EE.

In addition, EE paid the said automobile to AA as a substitute for a share purchase price. The said automobile is registered in the name of another person, and it was changed in the name of AA on December 27, 2004, much more than March 24, 2006, when EE purchased shares from AA, and it was changed to the name of AA on December 27, 2004. The EE pointed out this fact, who transferred the said automobile to AA and did not receive the said payment, was set off against the share purchase price, but it is difficult to accept the said fact in light of the empirical rule, since the said automobile was put in the name of another person as before the end of 203 to December 26, 2014 without receiving any payment, and was set off against the share purchase price and the share purchase price for about one year and three months after the end of 1 year and three months.

(2) ADD made a statement that the amount of KRW 69,225,00 out of KRW 98,30,000 that was withdrawn from the account of ○○○○○ on March 20, 2006 was paid to AA in cash. However, it is inevitable to pay a cash of KRW 7,00,000 to the National Tax Service, and there is no special reason to pay the amount in cash for the details of stock change reported to the National Tax Service. In addition to the fact that DD withdrawn KRW 98,30,000 from the Korean Account of ○○○○○○○○ in Korea to deposit KRW 80,00,000 with the non-party’s account, it is difficult to believe the above statement made to AA in cash.

E) EE, DD, and CCC have purchased the instant shares from AA, but it stated that the price was set at KRW 5,000 per share or the purchase price was determined by the Plaintiff. In addition, DDR did not perform any act that should be done as a transferee, such as confirmation of the subject matter of the transaction, negotiation of performance conditions, etc. in the process of purchasing the instant shares from EE, DD, and CCC, except for DA’s acquisition of shares on January 17, 2006, but CCC had usually set up the remainder of the contract with DDA and signed the contract with DDA after DDA’s receipt. In light of the foregoing, DCC’s normal transaction does not appear to have been seen as having received from DA after DDA’s receipt.

F) In light of the fact that the Plaintiff was registered as a shareholder of the non-party company, and the employees of the company controlled by the Plaintiff were registered as a shareholder of the non-party company and sold shares to the non-party company upon the Plaintiff’s intent, the non-party company was engaged in the business by accepting the defense industry sector at the time of dissolution of the non-party company’s incorporation. The Plaintiff did not register the non-party company’s shareholder registry but ordered the non-party company to issue capital increase as the president around 2003, and the representative director of the non-party company was unaware of it. The Plaintiff thereafter participated in the major decision-making on the management while regularly working in the non-party company.

2) Whether to recognize the purpose of tax avoidance

The legislative purport of Article 41-2(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 7010, Dec. 30, 2003; hereinafter “the Inheritance Tax and Gift Tax Act”) is to recognize an exception to the principle of substantial taxation to the purport that the act of tax avoidance using the title trust system is effectively prevented, thereby realizing the tax justice. Thus, only if the purpose of the title trust is not included in the purpose of tax avoidance, the proviso of the same Article can be applied, and in such a case, the claimant bears the burden of proving that there was no such purpose of tax avoidance. The nominal owner who bears the burden of proving that there was no objective of tax avoidance in the title trust has a clear purpose which is not superior to that of the tax avoidance in the title trust, and that there was no tax avoidance at the time of the title trust or in the future, and that there was no tax avoidance at the time of the title trust or in the future, the plaintiff did not have the burden of proving that there was no other purpose of tax avoidance (see, e.g., Supreme Court Decision 2004Du120).

3. Conclusion

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

(c)