It is paid in return for contribution to the acquisition process, not title trust.

In light of the fact that not only the establishment of a pledge but also the responsibility for repayment for the shortage, and that it is directly responsible for the preparation of acquisition price, such as endorsement on the per share sheet, etc., it is reasonable to view that it was paid as compensation for contribution not to the title trust but to the acquisition process.

2013Guhap51657 Revocation of Disposition of Imposition of Gift Tax

KimA

Head of Mapo Tax Office

September 26, 2013

November 28, 2013

1. The Defendant’s disposition of imposition of gift tax OOO on October 11, 2012 is revoked.

2. The costs of the lawsuit shall be borne by the Defendant, including the cost of the supplementary participation.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On August 27, 2009, the Plaintiff’s Intervenor (hereinafter “ Intervenor”), the Plaintiff, the KimB, the KimD, KimD, the KimE, and the KimF entered into a share sale and management acquisition agreement (hereinafter “instant agreement”) with 72,800 shares (70% of the total shares issued by the non-party company 104,000 shares) to acquire LL (hereinafter “non-party company”) in total as shown below with GG, HH, H, H II, H, GJ, Park J and EK as follows.

transferor

Number of shares (number of shares)

Transfer Value (won)

A transferee

Number of shares (number of shares)

The acquisition price (cost)

GGG

52,000

OOO

An intervenor;

24,544

OOO

10,556

OOO

HH

500

KimB

10,556

OOO

JII

6,700

CC Kim

10,400

OOO

D Kim D Kim

7,280

OOO

Park JJ

6,900

EE

7,280

OOO

EK

6,700

FF Kim

2,184

OOO

B. As a result of investigating the shareholder change of the non-party company, the director of Daegu Regional Tax Office:

The Intervenor, as the owner, held the title trust of the non-party company’s shares 10,556 shares (hereinafter “instant shares”) to the Plaintiff, and notified the Defendant of the gift tax assessment data.

C. Accordingly, on October 11, 2012, the Defendant decided and notified the Plaintiff of the KRW OO of the gift tax pursuant to Article 45-2 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”).

D. On November 1, 2012, the Plaintiff appealed and filed a petition with the Tax Tribunal for an adjudication, but was dismissed on December 31, 2012.

[Based on recognition] The evidence Nos. 1, 3 (including branch numbers, hereinafter the same shall apply), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff and the intervenor's assertion

1) The instant shares were received in return for the contribution of the Plaintiff to acquire the non-party company, and are not nominal trust but owned by the Plaintiff.

2) The Defendant calculated the value of donated property by deeming the acquisition price of the non-party company as a approximately KRW OOO, but since the acquisition price of the non-party company is OO, it is unlawful to calculate the value of donated property.

3) Even if the instant shares were nominal trust, there was no objective of tax avoidance.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) The LG operated the Nonparty Company and the Plaintiff (hereinafter “MM”) that supplied steel products to BB. As a result, the situation where the management of the company is unable to take place due to the death of the child, the spouse of the spouse, and the personal exchange of the principal, etc., the LG had been in charge of management consulting duties and sales advisory duties for the Plaintiff from the end of 2007.

2) At around 2009, LG requested the Plaintiff to identify the person who can receive Nonparty Company and MM from the Plaintiff, and the Plaintiff introduced the Intervenor to LG.

3) The Plaintiff demanded GG to set the acquisition price according to the Intervenor’s financial situation lowers as an OOO, and HG did not refuse the Plaintiff’s repeated request and set the acquisition price lowers as an OOO. In addition, the Plaintiff requested GG to take over the non-party company first to OOO due to the Intervenor’s financial situation and then to take over MM through the non-party company to OOO. In addition, GG would accept the proposal instead of accepting the proposal of the Plaintiff, but rather take over the non-party company without commercial M&A’s actual intention.

4) On August 27, 2009, the Plaintiff, the Intervenor, etc. entered into the instant contract to acquire 72,800 shares of the non-party company (70% shares, and 10,556 shares of the Plaintiff among them) from the non-party company (the share ratio of 70%, and 10,556 shares of the Plaintiff). On the same day, the Intervenor entered into a contract with the non-party company to acquire 31,200 shares of the non-party company (the share ratio of 30%) from the non-party company to the non-party company.

5) At the time, the Intervenor raised funds from NN and NN Corporate Restructuring 2 (hereinafter collectively referred to as "NN") that the Plaintiff introduced by the Intervenor to cover the acquisition cost.

6) The Intervenor decided to sell 31,200 shares of the non-party company to NN on September 2, 2009, but the Intervenor entered into a contract with N to purchase the shares again from N to N to NOO on November 30, 2009. At the same time, the Plaintiff offered to NO a neighboring pledge on the shares of this case in order to secure the Intervenor’s re-purchase. Meanwhile, the foregoing neighboring pledge agreement states that the Plaintiff still assumes the responsibility for reimbursement for the shortage, if the amount the NN received through the exercise of NN’s rights, and the amount the NN received through the exercise of the rights of NN is insufficient to cover the expenses for the enforcement of the neighboring pledge and the secured obligation.

7) Of the sum of the acquisition price of the non-party company, the non-party company’s OOOOO members paid as checks by KimCC, the spouse of the intervenor and the intervenor, and the OOOOO members were paid as funds raised from NN, and the OOO was paid as the per share sheet issued by the AAF company, the representative director of which is the intervenor. On the other hand, the plaintiff endorsedd on the said per share sheet.

8) On September 3, 2009, the Plaintiff was an internal director of the non-party company, and the intervenor was appointed respectively as the inside director and the representative director of the non-party company on the same day.

9) After finding out the financial status of the non-party company, the Intervenor confirmed that the obligation to return the provisional payments of the GuroG, which was known to the original OOOO members, was the cause of OOO, and requested the LG to reduce the acquisition price on the ground of the increase in contingent liabilities, but the number of shares paid by the Intervenor was suspended.

10) On December 2009, the Plaintiff filed a criminal complaint against the Intervenor against the crime of breach of trust, filed an application for provisional disposition demanding the suspension of performance of duties as the representative director of the non-party company, etc., and the dispute arose between the Plaintiff and the Intervenor regarding the operation of the non-party

11) On December 28, 2009, the non-party company opened a temporary general meeting of shareholders and resolved to dismiss the plaintiff from outside directors.

12) Around December 23, 2010, the Plaintiff and the Plaintiff’s spouse KimB agreed to transfer the instant stocks and KimB-owned stocks to the intervenors to OOB (hereinafter “instant agreement”). The main contents of the instant agreement are as follows.

Article 1 Payment of Agreed Amount

1) The Intervenor A (the Intervenor) shall pay OOB to B (the Plaintiff, KimB) on the condition that B (the Plaintiff, KimB) complies with the following sub-paragraph 2.

Article 2 Obligations of Section B

1) After this agreement has been reached with respect to the shareholders, employees, and NN of Company A, Non-Party Company B, and NN, no civil lawsuit or criminal charge or criminal complaint has been filed, and no action may be conducted against the above-mentioned individuals or companies, including oral or written submission of relevant information, to the relevant agencies, or to third parties.

Article 3 Transfer of Shares

1) The entire shares of the non-party company named in the name of B shall be transferred in the name of A, and Eul shall not thereafter make any claim or objection to the shares of the company in the future.

[Reasons for Recognition] The entry of Evidence Nos. 1, 3, 5 through 10, and 15, witness Rog's testimony, the purport of the whole pleadings

D. Determination

1) Article 45-2 of the Inheritance Tax and Gift Tax Act provides that where the actual owner of the property (excluding land and buildings) which requires the transfer of rights or the registration thereof is different from the nominal owner, the title holder shall be deemed to have donated the value of the property under title trust to the actual owner on the date on which the registration, etc. is made to the title holder. The title trust agreement is not necessarily established under an explicit contract between the truster and the trustee, but may be established by implied agreement. Whether there was an implied agreement on the title trust should be determined reasonably in light of social norms by comprehensively taking into account all the circumstances, such as the relationship between the truster and the trustee, the motive and background leading up to the trustee’s custody of the property, the transaction details and manner between the truster and the trustee, etc. In imposing gift tax on the basis of the provision on deemed donation of the property under title trust, the burden of proving whether the title trust

2) In light of the above legal principles, comprehensively taking into account the following circumstances acknowledged by the Defendant’s overall purport of the evidence and the entire pleadings regarding the instant case, the evidence submitted by the Defendant alone is insufficient to acknowledge that the Intervenor held the title trust of the instant shares to the Plaintiff, and there is no other evidence to acknowledge

A) The relationship between the Plaintiff and the Intervenor: The degree of 20% (including the Plaintiff’s spouse KimBB equity) of the entire shares of the non-party company is not a special relationship to the extent of title trust. On the other hand, KimCC, which is described as the purchaser under the contract of this case, appears to have a special relationship to the extent that the Intervenor’s spouse, E, and KimF, as an employee of the Intervenor, may be trusted and trusted to the Intervenor.

B) The Plaintiff’s contribution to the acquisition of the non-party company asserts that the instant shares were held in title trust on the ground that the Plaintiff did not fully pay the purchase price of the non-party company’s shares. Although the Plaintiff did not pay the purchase price of the non-party company’s shares, i.e., the Plaintiff introduced the Intervenor to GG, and lowered the acquisition price of the non-party company and MM’s shares first presented through negotiations with GG, and the acquisition price of the non-party company and the non-party company was lower than the OOO, taking into account the circumstances of the Intervenor’s financial difficulties in the process of accepting the non-party company and MM at the same time, the Plaintiff was able to take over the non-party company’s shares through the non-party company instead of the acquisition price of the non-party company and the non-party company’s shares, and the Plaintiff still did not pay the non-party company shares to the Plaintiff for the acquisition price of the non-party company under consideration that the non-party company’s share acquisition price was paid to the non-party company’s shares.

C) The exercise of shareholder's rights: The Plaintiff took office as a director of the non-party company immediately after acquiring the instant shares and participated in the management of the non-party company, and exercised shareholder's right to access accounting books or voting rights at the general meeting of shareholders. Meanwhile, the non-party company took all the procedures under the Commercial Act regarding the general meeting of shareholders, such as notifying the Plaintiff of the convening of the general meeting of shareholders, and the Plaintiff expressed its opposing opinion. This is a circumstance that cannot be seen

D) In relation to the instant agreement: The Defendant asserted that the amount under the instant agreement would be only the amount of the agreement for the return of title trust shares rather than the transfer price for the instant shares and KimB-owned shares; thus, it is reasonable to view that the Plaintiff’s acquisition price for the instant shares and KimB-owned shares reaches approximately KRW OO. However, it is found that the foreign debt would amount to the initial acquisition price for the non-party’s shares after the non-party’s acquisition of the non-party company, as the non-party company was found to have exceeded KRW OO or discovered. In addition, as the non-party company’s re-purchase agreement with the non-party company against NN was not implemented, the said shares would still be worth the actual value because the non-party company’s re-purchase agreement was not implemented. As long as the Plaintiff was removed from the non-party company’s management and was excluded from the non-party company’s management, leaving the shares of the non-party company as the shareholders of the non-party company is only the responsibility for NB.

3) Therefore, it cannot be deemed that the instant disposition based on the premise that the instant shares were held in title trust is unlawful without having to further examine the remainder of the allegations by the Plaintiff and the Intervenor.

3. Conclusion

The plaintiff's claim is justified and accepted.