Daegu District Court 2015Guhap2095 ( December 21, 2016)

A title trustee has the standing to sue to seek nullification of the stock attachment disposition.

A title trustee of shares is legally interested in seeking confirmation of invalidity of the disposition of seizure of shares, so the standing to sue is recognized, and it is difficult to regard the shares of this case subject to seizure as the borrowed property of a delinquent taxpayer, and thus the disposition of seizure of the shares of this case

Article 53 (Requirements for Release of Attachment)

Daegu High Court 2017Nu4063 Invalidity of a disposition of stock seizure

Gangwon and 00

ㅇㅇㅇ세무서장

Daegu District Court Decision 2015Guhap2095 Decided December 21, 2016

2017.08.18

2017.09.22

1. Revocation of a judgment of the first instance;

2. The attachment disposition against the plaintiffs' shares listed in the [Attachment 2] List of Seized Stocks is all invalid, provided that the defendant made to the successors of netqq on September 22, 2014.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to paragraphs 1 and 2.

1. Details of the disposition;

A. Status of the plaintiffs

1) Co. v(hereinafter “V”). Nonparty Co., Ltd. was established on January 12, 1990 with the trade name of Nnn Co., Ltd. on June 5, 1996; and

On April 28, 2015, the trade name was changed to the present date) is published in general books and textbooks publishing business.

It is the board company.

2) The Plaintiffs, as the believers of Plaintiff’s Intervenor, are religious organizations, share in the register of Nonparty Company’s shareholders

The plaintiffs (hereinafter referred to as "the plaintiffs") listed in [Attachment 1] to 64 of the "List of Plaintiffs" are primarily listed.

'Plaintiff 1 through 64' is a zzzz partner, attached Table 3, a shareholder of the zz partner.

The list is recorded as a shareholder of a total of 60,000 States, and the plaintiff B shall be 40,000 States, and the plaintiff

ThisCC is listed as shareholders of 50,000 shares, and the plaintiffs AD are listed as shareholders of 30,000 shares (total 18 shares).

- 3-

○ The delinquent taxpayer: the wife of the deceased, e, e, r, t, yt, yy (the children of the deceased)

○ Delinquent tax amount: Gift tax amounting to KRW 13.66 billion on an occasional basis in January 201, 201.

○ Display of the attached property: ymmm Co., Ltd. (mmmmm Co., Ltd.) held by the inheritor of the deceased.

shares 180,000 shares (qqs) in the name of the borrower and 66

All rights of non-listed stocks, listed stocks and listed stocks held (all dividends)

All of the rights to be received, voting rights, etc.)

Only hereinafter referred to as "the shares of this case".

(b) Occurrence of preserved rights;

1) The head of the Seoul Regional Tax Office’s Regional Tax Office’sqq (PP, July 2014, 2014) from April 22, 2014 to whichu Group’s control was controlled.

After conducting a tax investigation on death, hereinafter referred to as "the deceased") and then conducting a special relationship between the deceased and the defendant

It notified the gift tax assessment data that "the exhibition service was provided without compensation from the person."

2) Accordingly, on July 1, 2014, the Defendant decided and notified the deceased of KRW 15.35 billion as gift tax on the deceased.

However, around July 2014, the deceased’s death was revealed, and the Defendant’s gift to the deceased.

After cancelling the tax disposition, the gift tax amount anticipated to be succeeded to the deceased’s heir 136

on the premise that the inheritor is liable to pay 63 million won to the extent of the inherited property.

The attachment disposition against the inherited property was commenced.

C. Attachment disposition of the shares of this case

On September 22, 2014, the defendant notified the non-party company of the attachment of the following:

On October 22, 2014, the shares issued among the shares in this case from the non-party company shall be seized.

zzzz partner (Plaintiff 1 to 64) received share certificates of 60,000 shares in total.

C. (A disposition of seizure of the shares of this case by the Defendant (hereinafter referred to as the "disposition of this case").

(d) Implementation of the preceding trial procedures;

Accordingly, the plaintiffs asserted that the deceased is not the actual shareholder of the shares of this case and the tax court

Although an appeal was filed with the Board, the Tax Tribunal on August 12, 2015 (Plaintiff 1 to 64);

Section 208.24 August 24, 2015 (Plaintiffs bb, c.) and October 8, 2015 (Plaintiffs d.)

The beneficial shareholder of the shares in question is a title trust to the plaintiffs as the deceased.

All claims were dismissed.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 37-1 to 4, argument

The purport of the whole

2. Determination on the defense prior to the merits

A. The defendant's assertion

The plaintiffs are the actual owners of the shares of this case and are not entitled to the disposition of this case.

The plaintiffs have sought confirmation of validity, which is nothing more than the title trustee of the shares of this case.

The plaintiffs, who are merely the title trustee of the shares, are subject to infringement due to the seizure of shares.

Since there is no legal interest, there is no standing to seek confirmation of invalidity of the disposition of this case against the plaintiffs.

(c)

B. Relevant statutes

Attached 4 is as shown in the "related Acts and subordinate statutes".

C. Whether there is a legal interest in seeking confirmation of invalidity of the disposition against the plaintiffs

1) Relevant legal principles

○ In the case of a title trust of shares, there is a name owned by the trustee in an external relationship.

the trust in the internal relationship between the trust and the trustee; or

A person who owns, manages, and takes profits from, his/her ownership (see, e.g., Supreme Court Decisions 88Meu1505, Oct. 24, 1989; 2013Da201752, Feb. 18, 2016). In such a title trust, the trustee is the owner of the property externally in the title trust. The filing of a claim for exclusion of infringement on the property held in title trust is limited to the trustee who is the external owner, and the truster can seek exclusion from infringement on his/her behalf of the trustee (see, e.g., Supreme Court Decision 2000Da36484, Aug. 21, 2001).

Pursuant to Articles 38 and 39 of the National Tax Collection Act, where share certificates have been issued in general, the method of executing corporeal movables is a subject of execution (Article 189(2)3 of the Civil Execution Act). The seizure of movables is conducted by a tax official’s possession, but in certain cases, it can be permitted to have the delinquent taxpayer keep the movables in custody and use or profit therefrom. Here, possession means to exclude the delinquent taxpayer’s possession of the object in full and to directly control and keep it by a tax official. Thus, in cases where the tax office seizes movables owned by a third party possessed by the delinquent taxpayer for the collection of tax, the delinquent taxpayer is a person whose possession right of the object was infringed by the seizure disposition and who has a direct and specific interest in the seizure disposition, and thus, has the right to seek revocation or invalidity of the seizure disposition (see, e.g., Supreme Court Decision 2005Du151, Apr. 13, 2006).

In a case where not only a transferor is indicated as a shareholder but also a person who acquires or intends to acquire shares by means of lending another person’s name but also a company’s name has taken over or completed the entry in the register of shareholders, the register of shareholders is entitled to legally exercise shareholders’ rights, such as voting rights, as a shareholder, in relation to the company (see, e.g., Supreme Court Decision 2015Da2016, Mar. 23, 2017).

248342 see Supreme Court en banc Decision)

2) Determination

The fact that the plaintiffs are listed in the register of shareholders of the non-party company as shareholders of the shares of this case, and that the defendant seized the shares of this case by the disposition of this case, and that among them, zzzzzz partners (Plaintiff 1 through 64) was delivered share certificates issued for 60,000 shares.

Examining these facts in light of the relevant legal principles, the Plaintiffs are the actual owners of the instant shares, such as their names, not theqq or the Plaintiff’s Intervenor’s title trustee; in either case, the external owners of the instant shares are the Plaintiffs, who are the nominal owners; and only the Plaintiffs are the persons who are entitled to exercise shareholder rights against the non-party company, which is the issuing company. However, due to the instant disposition, the Plaintiffs were subject to restrictions on exercising the above external ownership as to the instant shares and the shareholder rights (the right to claim dividend, etc.) against the non-party company. Furthermore, Plaintiff 1 and 64 were subject to the said disposition, thereby infringing on the (indirect) right to share certificates of 60,000 weeks.

Therefore, the plaintiffs are legally and directly interested in the disposition of this case, and are entitled to sue to seek confirmation of invalidity of the disposition of this case. Thus, the plaintiffs are entitled to sue.

On the other premise, the prior defense of the prior defendant is without merit.

3. Whether the instant disposition is lawful

A. The parties' assertion

1) Plaintiff

The shares of this case are not the deceased but title trust with the plaintiffs as the ownership of the plaintiff assistant intervenor. Accordingly, the disposition of this case, which is merely a seizure of the property owned by a third party, not the delinquent, is null and void as a matter of course.

2) Defendant

The Deceased used the Ggggggggggg (hereinafter referred to as “ggggg”) that was holding 44.08% shares in his name, and controlled the whole Ngggggg as an affiliate (hereinafter referred to as the “affiliated”) by the non-party company, etc., and the shares of this case also were in title trust with the plaintiffs as the ownership of the deceased. Thus, the disposition of this case against the deceased’s property is legitimate.

B. Relevant statutes

Attached 4 is as shown in the "related Acts and subordinate statutes".

C. Determination

1) Relevant legal principles

○ Even if the tax authority seizes and publicly sells an object owned by a third party as a disposition on default against a taxpayer, such disposition does not lose ownership by the third party, and the provisions of the National Tax Collection Act stipulating the requirements for seizure as a disposition on default are limited to the taxpayer’s property. As such, a disposition on the property of a third party, which is not a taxpayer, subject to seizure, cannot be legally realized, and thus, the disposition on the property of a third party, which is subject to seizure, cannot be legally realized (see Supreme Court

23. See, e.g., Supreme Court Decision 2000Da68924, supra)

As a matter of principle, the tax authority bears the burden of proving the existence and the tax base of the tax requirement. This also applies to a case where the title of transaction, etc. and the actual subject of ownership are contested, barring any special circumstance, such as there is a separate statutory provision converting the burden of proof (see, e.g., Supreme Court Decision 2011Du9935, May 16, 2014).

○ A person registered as a shareholder in the registry of shareholders is presumed to be a shareholder of the company, and in order to reverse the presumption, the person bears the burden of proving the denial of his/her shareholder’s rights. Therefore, in order to assert that the name of the shareholder in the registry of shareholders was trusted and that of the person borrowed from the registry of shareholders, the person who is in fact a different shareholder should prove the fact of borrowing the name in the registry of shareholders (see, e.g., Supreme Court Decision 2014Da53745, Aug.

2) Whether the deceased is the actual owner of the shares of this case

A) First of all, part of the statement No. 21-1 and No. 2 of the evidence No. 21-2, which corresponds to the fact that the deceased is the actual owner of the instant shares, is difficult to believe that it is a statement made by Kimk, the representative director of the ggggggggggg, in the case of his embezzlement, in light of the circumstances that are considered below, as it is.

And evidence Nos. 11 through 16 (including paper numbers; hereinafter the same shall apply), Eul Nos. 5, 8, 9, 25

According to the statement of the deceased, ① the deceased served as the leader of the Plaintiff’s Intervenor who is a religious organization.

In addition, it was found that Non-Party 1 or Non-Party 2 received an oral report on important matters regarding the management of the company from the representative directors of its affiliate companies related to the Plaintiff 1, such as hhhh and jj, and that the gg was established on October 1, 2007. The e, r, tt, and yyy)’s children (e, r, r, r, yyy) owned a total of 4.02% shares through capital increase on or around December 2007 and around February 2008; 3, Kimk-k's representative director at ggggggggggg or 2007, who was assigned to Non-Party 4 or 2, from April 29, 2003 to March 17, 2014, Non-Party 2 or 3, an affiliate of Kimk, who was a joint representative director of the non-Party 2, who was established from 190g to March 29g.

B) However, in light of the following circumstances that can be seen by comprehensively considering the purport of the entire pleadings, each of the aforementioned quoted evidence and the evidence Nos. 1 through 20, 22 through 37, respectively.

The second is insufficient to recognize that the deceased is the actual owner of the shares of this case.

The defendant's assertion as to the relation is without merit.

① The reason behind the deceased’s role as the leader of the Plaintiff’s Intervenor and received a report on the operation of an affiliate by having 44.02% of the ggggggg shares in its name, cannot be readily concluded that both the Plaintiff’s Intervenor and the relevant affiliate’s property as a religious organization are personal property of the deceased.

② Even if the part of the deceased’s personal property is included in the property of the Plaintiff’s Intervenor or related affiliate companies, in light of the following: (a) the Defendant’s wife’s wife ww, as the creator of the Plaintiff’s Intervenor, took overall control of the Plaintiff’s Intervenor’s missionary work and took part in the execution of the missionary work fund for a long time through x, etc., it is difficult to view all of the above personal property of the deceased, not as authorized.

③ On August 1, 1982, the Plaintiff’s Intervenor acquired nn's book publication in the name of 10 million won, which was loaned to Dan under the name of Dac, and on October 5, 1982, the Plaintiff's Intervenor registered nn's business with the trade name of Don's name. The Plaintiff's Intervenor was merged with nn's "yyyyyyn's" as a donation from Dac, Don, Don, in 1984, on January 1, 1988, and registered nn's business with the trade name of Don's "nn's book publication" as Don's "nn's name." The Plaintiff's Intervenor registered the above Nnn and nn's operating income as Don's new representative director, e.g., 1000 Dan's capital and e., 190 Don's new representative director.

④ At the time of the incorporation of the non-party company, 16,00 shares of 16,00 shares (5,00 shares per share) were acquired from Eyc (joint representative), Plaintiff Ec (joint representative), Ed (director), Er, Eu, Kimu, Choq, and Kim r, which are the believers of the Plaintiff’s Intervenor. After that, 40,00 shares in 193, 195, 60,60 shares in 195, 197, 60,00 shares of 16,00 shares, and 40,00 shares in 18,00 shares in 19,00 shares of Eyc, Plaintiff Edcc, Plaintiff Edc, and Plaintiff Edd 30,00 shares in the name of the non-party 61 through 14, 204 employees of Ey 60,000 shares in the name of the Plaintiff’s New 41 through 14, 2014.

⑤ As above, the Nonparty Company was established as a contribution and business performance of the Plaintiff’s Intervenor, a religious organization, and was engaged in increasing its assets. Personal property of the Deceased does not appear to have been generated.

D. Sub-determination

Therefore, insofar as there is insufficient evidence to prove that the actual owner of the instant shares is the deceased, the instant disposition based on the premise that the instant shares are inherited property of the deceased is null and void as a matter of course.

4. Conclusion

If so, the plaintiffs' claim of this case must be accepted with due reasons, and the first judgment shall be accepted.

The decision is unfair by different conclusions, and thus, the plaintiffs' appeal is accepted and the decision of the court of first instance is revoked.

In order to confirm that the instant disposition is null and void, it is so decided as per Disposition.