Early High Court Decision 201J 0381 ( December 06, 2011)

title trust for any purpose other than tax avoidance may not be deemed to be a title trust

In the event that shares are acquired in the Plaintiff’s name, it is insufficient to recognize that there was a clear separate purpose from that of tax avoidance in the nominal trust of shares, solely on the sole ground that there was a possibility that the share price may decline due to the disclosure of the circumstances under which the shares were offered as security, and

2012Guhap281 Revocation, etc. of Disposition of Imposition of Gift Tax

KimAA et al.

The director of the North Incheon National Tax Office

June 15, 2012

August 10, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s imposition of gift tax for the year 2007 against Plaintiff KimA on October 18, 2010 and the imposition of joint and several tax payment for the above gift tax against Plaintiff JeongB, respectively, shall be revoked.

1. Facts of recognition;

On June 21, 2007, in order to take over the stocks of the GGG household owned by the EE Master Program Co., Ltd. (hereinafter referred to as the “EEE”), the Plaintiff and the Plaintiff JeongB entered into a sales contract with EE on June 29, 2007, under the condition that the EE participates in the sale process of the LLG household promoted by the limited competitive bidding process around May 2007, and pays 00 won and 000 won for total acquisition price, and entered into a sales contract with the EE on June 29, 2007, to purchase 8,319, and 610 shares of the GG household.

B. On August 22, 2007, the members of the FF industry construction consortium agreed to adjust the shareholding ratio set at the time of the above sales contract, and as a result, HoD took over 1,200,000 shares in its own name, and 517,895 shares in the name of the FF industry Construction Co., Ltd. FF industry Construction (hereinafter referred to as the “F industry Construction”), andCC took over 1,578,947 shares in the name of HHtu Holdings Holdings Co., Ltd. (hereinafter referred to as the “HH Holdings”), 2,424,873 shares in the name of UNJ, and 3, and 2,424,873 shares in the name of HK, and 2,570,570 shares in the Plaintiff, and HaB took over 1,570 shares in the name of the F industry construction consortium, i.e., gender MN, N, 100, and 10271 shares.

C. HHHO Does provided the GG household stocks to be assumed by AA mutual savings bank as a collateral, and borrowed the acquisition price of the stocks from it, and the AA mutual savings bank exercised the security right due to the shortage of collateral ratio due to the price decline, and transferred 1.1 million shares out of the GG household stocks held by HHO Holdings to its account on October 9, 2007.

라. 정DD과 원고 정BB는 2007. 10. 9. AA상호저축은행의 부사장 손QQ로부터 AA상호저축은행이 보유하고 있는 GGG가구 주식 110만 주를 매수할 것을 제안받 고， 마래상호저축은행이 보유한 위 주식 110만 주 및 전NN이 보유한 GGG가구 주식 14만 주를 매입하기로 하고， 같은 날 인수할 주식 합계 124만 주를 담보로 제공 하고 AA상호저축은행으로부터 주식매입대금 106억 원을 대출받아， 원고 정BB는 원고 김AA의 명의로 27만 주를(이하 '이 사건 주식'이라 한다)， 소외 김진국， 이기영의 명의로 39만 주를， 정DD은 한RR， 주SS의 명의로 56만 주를 각 매수하였다.

E. On October 18, 2010, the Defendant imposed 00 won of gift tax due to the constructive gift of title trust on Plaintiff KimA pursuant to Article 4(5) and Article 45-2 of the Inheritance Tax and Gift Tax Act (hereinafter “Inheritance Tax and Gift Tax Act”) and designated Plaintiff JeongB as a joint obligor (hereinafter “each disposition of this case”).

F. On December 22, 2010, the Plaintiffs appealed against each of the dispositions in this case, and filed an appeal with the Tax Tribunal on December 22, 2010, and the Tax Tribunal made a decision that the Defendant applied the provision on the constructive gift of title trust under the Inheritance Tax and Gift Tax Act to the Plaintiffs, but the determination of the tax base and the tax amount by applying the appraisal of shares discount under Article 63 of the Inheritance Tax and Gift Tax Act is unreasonable, and on December 6, 2011, each of the dispositions in this case made a decision that “the assessment of shares of GGG household held in title by Plaintiff JongB to Plaintiff KimA is not subject to the premium increase assessment under Article 63(3) of the Inheritance Tax and Gift Tax Act.”

G. On January 4, 2012, the Defendant issued a warning to KRW 000 on gift tax imposed on the Plaintiffs according to the aforementioned decision of the Tax Tribunal.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 3 (including each number, hereinafter the same shall apply) and Gap evidence 13 to 16, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs asserted that each of the dispositions of this case is unlawful on the following grounds.

(1) The fact that the Plaintiff Jung-B trusted the Plaintiff KimA with KRW 270,00,00 of the shares of the GGG household in title trust is either an obligation under the contract for the purchase and sale of shares of the GG household or an inevitable choice for the protection of management rights, which did not have the purpose of tax avoidance, and the Plaintiff JungB did not constitute an oligopolistic shareholder who would have the burden of secondary tax liability or deemed acquisition tax, and there was no possibility of tax avoidance, since there was no possibility of tax avoidance, since there was no fact that the GG household

(2) As for the shares 270,00,00 shares of the GGG household held in title by the Plaintiff Jong-B to the Plaintiff KimA, the pledge is established for the MG household, the amount of gift tax on the Plaintiff KimA pursuant to Article 47(1) of the Inheritance Tax and Gift Tax Act shall be calculated by deducting the secured amount of the above pledge from the value of the shares.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the assertion that there was no purpose of tax avoidance

(A) Relevant legal principles

The legislative intent of Article 45-2(1) of the Inheritance Tax and Gift Tax Act, which applies to the disposition of this case, is to effectively prevent the act of tax avoidance using the title trust system, and to realize the tax justice. Therefore, if the title trust was deemed to have been conducted for any reason other than the purpose of tax avoidance, and only a minor reduction of tax incidental to the said title trust arises, it cannot be readily concluded that there was the purpose of tax avoidance. However, in light of the legislative intent as above, only if the title trust does not include the purpose of tax avoidance, it cannot be deemed that there was a deemed donation by applying the proviso of the said provision, and if it is deemed that there was an intention of tax avoidance, it cannot be deemed that there was no other purpose of tax avoidance, and that there was no intention of tax avoidance, and that there was no other purpose of tax avoidance at the time of tax avoidance, 200, 2007Du1931, 200, and 207Du175, 2011.

(B) The allegation that there is no separate purpose between the tax avoidance and HB 1) the Plaintiffs were determined as to the fulfillment of the obligation under the sales contract, and the FF industry construction consortiums were to acquire less than 40% of the initial purchased shares between the EE at the time of entering into the sales contract for the shares for the FF industry construction consortiums, and the agreement was made to pay to BB a penalty for breach of KRW 000,000 of the shares, which were purchased first due to the circumstances such as the sale of the shares owned by the FF industry construction consortiums. The Plaintiffs’ assertion that there is no need for additional purchase of the shares for the implementation of the above agreed terms and conditions, and that there is no separate purpose inconsistent with the tax avoidance. According to the Plaintiff’s provision regarding the sale contract for the FF industry construction consortium’s 1, the Plaintiffs’ assertion that the total amount of shares were less than 40% of the shares, including the Plaintiff’s 3rd stocks, and that there was no reason to recognize the Plaintiff’s assertion that the Plaintiff’s shares were sold under the following circumstances.

2) Determination on the assertion that management rights will be secured

원고들은，정DD，원고 정BB는 FF산업건설 컨소시엄의 구성원인 HHH홀딩스의 지분매각으로 인해 경영권 확보를 위한 추가적인 주식의 매수가 필요한 상황이 었고，정DD， 원고 정BB와 대립적인 관계에 있었던 HHH홀딩스나 CC이 위와 같 은 주식매입에 이의제기를 할 가능성 및 정DD，원고 정BB 명의로 주식을 인수할 경우 그 주식을 AA상호저축은행에 담보로 제공한 사정이 공시되어 주가가 하락할 수 있다는 사정 등을 고려하여 제3자 명의로 주식을 매수할 수 밖에 없었던 것이므로， 원고들에게는 조세회피와 상관없는 별도의 목적이 존재하였다고 주장한다. 살피건대， 갑 제3호증의 1 내지 3， 갑 제5， 8， 10호증의 각 기재에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정 즉，① 정DD， 원고 정BB는 HHH 홀딩스，CC과 함께 FF산업건설컨소시엄을 구성하여 GGG가구 주식을 매수하였고， 위 주식인수를 위하여 HHH홀딩스，CC은 2007. 8. 7. FF산업건설，정DD，원고 정BB와 사이에 업무협약을 맺고 HHH홀덩스가 보유한 주식지분의 의결권 행사 를 FF산업건설， 정DD，원고 정BB에게 위임하였으므로 원고 정BB가 원고들의 주 장과 같이 HHH홀딩스，CC과 대립관계에 있었다고 단정하기 어려운 점(특히 정DD 과 원고 정BB는 CC의 GGG가구 주식에 대한 주가조작에 가담하여 실행자금으 로 15억 원을 지급한 사실도 있다)，② 이 사건 주식을 원고 정BB의 명의로 인수하는데 있어서 법령상 제한 등 불가능한 사정이 있었던 것으로 보이지 아니하는 이상， HHH홀딩스 측에서 선임한 이사 맹TT이 GGG가구의 자금을 횡령하고 경영권을 장악하기 위하여 노력하였다는 사정이나， HHH홀딩스의 주식 중 110만 주를 자신의 계좌로 이체한 채권자 AA상호저축은행의 부사장 손QQ가 이 사건 주식을 제3자 명 의로 인수할 것을 원고 정BB에게 권유하였다는 사정이나，이 사건 주식을 원고의 명의로 인수할 경우 위 주식이 담보로 제공된 사정이 공사되어 주가가 하락할 가 능성이 있었다는 사정만으로는 이 사건 주식을 명의신탁한 것에 조세회피와는 상관없는 뚜렷한 별개의 목적이 존재한다고 인정하기에 부족한 점，③ 앞서 본 명의신탁재산 에 관한 증여의제 규정의 입법 취지를 고려하면， 다른 주된 목적과 아울러 조세회피의 의도도 있었다고 인정되면 조세회피목적이 없다고 할 수는 없다고 할 것인데， 이 사건 주식들에 관한 명의신탁에 관하여는 아래 (다)항에서 살펴보는 바와 같이 조세회피의 의도가 없다고 보기도 부족한 점 등에 비추어보면， 원고들이 제출한 증거들만으로는 원고 정BB가 원고 김AA에게 이 사건 주식을 명의신탁한 것이 조세회피와는 상관없 는 주식 매매계약상의 의무이행을 위한 목적에 따른 것이라고 인정할 수 없고， 달리 이를 인정할 증거가 없으므로 원고들의 이 부분 주장도 받아들일 수 없다.

(C) Determination as to the assertion that there is no tax actually avoided

The plaintiffs asserted that there is no tax evasion tax with respect to the secondary tax liability and deemed acquisition tax of oligopolistic shareholders through the title trust on the shares of this case, and that there is no tax avoidance with respect to the dividend income since the GGG household corporation did not pay dividends after 2000, and that there is no tax avoidance with respect to the shares purchased, and that there is no tax avoidance with respect to the income from the transfer of the shares to other. As examined earlier, the determination of whether there was a tax avoidance purpose should be made at the time of the title trust. The issue of whether the plaintiff YB was the one at the time of the title trust with respect to the shares of this case at the time of the title trust with respect to the shares of this case is insufficient to conclude that there was no tax avoidance purpose even at the time of the title trust with respect to the shares of this case after the purchase of the shares of this case, and that there was no reason to prove that the plaintiffs did not have any motive for tax avoidance purpose with respect to the shares of this case at the time of the title trust, and that there was no reason to prove that the plaintiffs did not have any motive or reason for tax avoidance.

(2) With respect to the claim that the gift tax on the shares of this case should be calculated by deducting the secured debt amount of the above shares from the value of shares, the taxable value of the gift tax shall be the value calculated by deducting the secured debt amount from the value of the property where the donee takes over the secured debt, but if the donee does not take over the secured debt, the donee shall lose the ownership of the donated property if the secured debt is not taken over due to the donor's default. However, the donee shall lose the ownership of the donated property if the secured debt is exercised due to the donor's performance of obligation and the exercise of the secured debt. Accordingly, it is clear that the donee's acquisition of the donated property is a conclusive right due to the debtor's performance of obligation and the existence of the condition, such as the conditional right under Article 10 (1) of the Inheritance Tax Act, and it is evident that the donee's exercise of the secured debt amount can not be determined by taking into account the circumstances (see, e.g., Supreme Court Decision 87Nu91, Apr. 25, 1989).

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.