Seoul Administrative Court-2014-Gu Partnership-68294 ( October 21, 2015)

Seocho 2014west 719 ( October 26, 2014)

(b) the recovery of title trust other than re-donation;

(See the judgment of the court of first instance) It seems that taking the name of shares in the name of the wife is not a donation but a title trust, and it is reasonable to view that changing the name of the plaintiff also constitutes a recovery of title trust, not a second donation.

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

2015Nu4696 Revocation of Disposition of Imposition of Gift Tax

Park AA

BB Director of the Tax Office

Seoul Administrative Court Decision 2014Guhap68294 decided December 21, 2015

November 10, 2015

December 1, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposition of gift tax of KRW 878,402,70 against the Plaintiff on November 8, 2013 is revoked.

judgment of the court.

2. Purport of appeal

The judgment of the first instance is revoked and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reason why the court is used in this case is as stated in the reasoning of the judgment of the court of first instance, except in the following cases: Section 8(2) of the Administrative Litigation Act and Section 420 of the Civil Procedure Act, since Section 10 of the judgment of the court of first instance is the same as stated in the reasoning of the judgment of the court of first instance.

[Supplementary Use]

The defendant asserts that Article 31 (5) of the Inheritance Tax and Gift Tax Act provides that "in cases where the property donated to the donee is returned to the donor or returned again to the donor within three months after the deadline for filing the return under Article 68 of the Inheritance Tax and Gift Tax Act expires, no gift tax shall be imposed on the return or re-donation of the property donated to the donee." Article 45-2 (1) of the same Act imposes gift tax on the title truster by deeming the title trust for the purpose of tax avoidance as a donation. Thus, the "donation" under Article 31 (5) of the Inheritance Tax and Gift Tax Act shall be deemed as included in the title trust deemed as a donation. Therefore, even in cases where the title trustee returned the property trusted to the title truster three months after the deadline for filing

However, the legislative purport of Article 45-2(1) of the Inheritance Tax and Gift Tax Act is to recognize an exception to the substance over form principle to the purport that the act of tax avoidance using the title trust system is effectively prevented even if the substance is not a donation, and the tax justice is realized by effectively preventing the act of tax avoidance. As such, the fact that the name of stocks, etc. was converted into the name of the actual owner after three months from the expiration of the deadline for filing the gift tax does not constitute a new donation, and thus, it cannot be deemed as a gift tax pursuant to Article 31(5) of the Inheritance Tax and Gift Tax Act. The Supreme Court Decision cited by the Defendant is

(ix) The issue is different and inappropriate to be invoked in the instant case. Accordingly, the Defendant’s argument is therefore asserted.

shall not be effective.

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.