early 2012 Middle 0735 (2012.05.09)

Contribution to shares, not the shares held in title trust;

It is legitimate to impose gift tax on the increase in the stock value by deeming that the shares expected to be the stock price increase according to the KOSDAQ and are donated to the spouse in advance, although it is alleged that the shares are held in title trust without any tax avoidance purpose, and that the low-evaluation shares are donated to the spouse.

2012Guhap7289 Revocation of Disposition of Imposition of Gift Tax

Gangwon A

Head of Suwon Tax Office

February 1, 2013

February 15, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax of KRW 000 against the Plaintiff on July 8, 2011 is revoked.

1. Details of the disposition;

A. Nonparty B is the wife of AD, who is the representative director of NonpartyCC Co., Ltd. (hereinafter “Non-Party”) and the Plaintiff is the spouse of the above ParkB.

B. On December 18, 2009, the Plaintiff filed a gift tax base return with the purport that it was donated 104,415 shares (hereinafter “instant shares”) of Non-Party Company’s non-listed shares to the Non-Party Company (hereinafter “the instant shares”) by ParkB.

C. On July 21, 2010, the market price of the instant shares was increased since the non-party company was listed on the KOSDAQ, and the Defendant assessed the Plaintiff from ParkB as the donation of the profits arising from the listing of stocks or equity shares under Article 41-3 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11130, Dec. 31, 201; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), and assessed the Plaintiff as the donation of the gift income of the instant shares under Article 31-6(3) and (4) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 23040, Jul. 25, 201) (i.e., the appraised value per share as of the date of settlement - KRW 000 per share - the actual profits arising from the increase of corporate value per share - KRW 00 per share, and assessed the gift tax (hereinafter referred to as “the gift tax”).

D. On May 9, 2012, the Plaintiff filed an objection against the instant disposition and filed an appeal with the Tax Tribunal, but the said claim was dismissed.

[Ground of Recognition] The non-contentious facts, Gap evidence 1, 2, and Eul evidence 1 to 8 (including household numbers), and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant shares are not donated, but registered in title without the purpose of tax avoidance, and if a tax return is filed as a donation of shares, the instant shares are merely those reported in the form of gift tax in consultation with the tax agent. Nevertheless, the instant disposition by the Defendant, which imposed the pertinent gift tax on the Plaintiff on deeming that the Plaintiff was donated the instant shares from BaB, was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Relevant legal principles

The burden of proof for the existence of the taxation requirement should be established against the tax authority, but it is proved that the other party does not have the duty to apply the empirical rule (see, e.g., Supreme Court Decision 89Nu6006, Apr. 27, 1990). Therefore, the tax authority should establish the ownership of shares under the name of the title truster, such as the list of shareholders, and the statement of stock transfer, and otherwise, acquire the ownership of the other party under the name of the actual owner, or prove that the other party was entered in the name other than the name of the actual owner (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004). The main text of Article 45-2 (1) of the former Inheritance Tax and Gift Tax Act provides that, even if the actual owner or title holder of the property was not the title truster, the title truster should have the duty to prove the ownership of the property under the name of the other party, and that the latter did not have the duty to prove.

(2) Judgment on the Plaintiff’s assertion

Based on the above legal principle, in this case, the plaintiff's testimony of Gap evidence 7-1, part of Eul evidence 2-2, witness KimE, and letterF, which seems to correspond with the above, is difficult to view in light of the following circumstances recognized by the purport of Gap evidence 2-6, Eul evidence 7-1, and 9 through 11 (including paper numbers), and witness Kim E-F's testimony and whole arguments, and witness Kim E-F's testimony and whole arguments, and each statement of Gap evidence 3 through 6, and evidence of evidence 8 through 22 (including paper numbers) are insufficient to recognize the plaintiff's primary facts, and there is no other evidence to support them.

① On December 18, 2009, the Plaintiff reported the gift tax base to the effect that the instant shares were donated by ParkB on December 18, 2009, and attached to the share donation agreement attached to the said report, stated that “LB made the instant shares free of charge to the Plaintiff on December 15, 2009, and that taxes and public charges, such as gift tax, arising in relation to the said donation, shall be borne by the Plaintiff, and include BB and the address, resident registration number, name, and contact number at the bottom of the said report along with the signature.

② The statement of the change of stocks, etc. in the business year 2009 of the non-party company (Evidence No. 6-3) is written as of December 31, 2009 as of December 31, 2009 as of the end of the pertinent business year, and the statement of the change of stocks, etc. in the business year 2010 (Evidence No. 6-2) is written as of December 31, 2010, which is the end of the pertinent business year.

③ Around December 12, 2008, Non-Party Insignia entered into a representative supervision contract for listing on the KOSDAQ market with GGG securities company, and submitted a registration statement stating the situation of holding and changing the shares of Non-Party Company when filing an application for listing on the KOSDAQ market around early 2010, and the said registration statement contains that the Plaintiff holds the shares of this case. In relation to this, Non-Party Company’s representative director AD on June 11, 2010, directly confirms and examines the descriptions of the said registration statement with due care, and confirms that there was no omission or false description or indication of important descriptions, and that there was no description or indication of users’ gross misunderstanding.

④ 원고가 제출한 이사회의사록(갑 제7호증의 1)에는 "주주 박BB가 2009년 12월 내로 원고 명의로 이 사건 주식을 명의신탁할 것을 요청하여， 2009. 12. 1 이를 원안대로 가결한다 "고 기재되어 있고， 명의신탁약정각서(갑 제7호증의 2)에는 "주주 박BB 가 원고에게 이 사건 주식을 명의신탁할 것을 소외 회사에 요청하였고， 위 명의신탁에 따른 문제가 발생할 경우 소외 회사가 모든 법적 책임을 질 것을 약정한다 고 기재되어 있다. 그러나 ㉠ 원고는 소외 회사의 이사회가 2009. 12. 1. 실제로 개최되었다는 점에 관한 객관적인 증빙자료(소집통지 발송내역)를 제출하지 못하고 있는 점，㉡ 위 명의신탁약정좌서에는 소외 회사의 법인인감증명서가 첨부되어 있는데， 위 인감증명서는 위 이사회 결의일 및 명의신탁 약정일로부터 약 4개월 전인 2009. 8. 11. 발급된 점，㉢ 위 명의신탁약정각서에는 이 사건 주식의 명의신탁에 관한 계약당사자의 권리 의무 및 법적책임의 소재 등 중요 사항이 규정되어 있음에도 불구하고 그 작성일자가 불분명할 뿐 아니라 공증 등의 확인 절차를 전혀 거치지 아니한 점 등에 비추어，원고가 제출한 위 각 서류의 기재내용을 그대로 믿기 어렵다.

⑤ 원고는， "박BB가 HH그룹 계열사인 HH네트웍스에서 근무하고 있었는데，소외 회사의 거래처이자 같은 그룹 계열사인 HH가 당시 그 임직원들의 협력업체 지분 취득을 엄격하게 금지하고 있었기 때문에， 위 회사와의 원활한 거래관계 유지를 위하여 원고에게 이 사건 주식을 명의신탁하게 된 것이다 "고 주장한다 그러나 ㉠ 소 외 회사의 재경팀 부장이었던 소외 김EE은 이 법정에서 "당시 HH그룹 계열사와 거래를 하기 위하여 위 그룹으로부터 주식보유 현황에 관한 문의를 받거나 그러한 서면을 작성하여 준 사실이 없다 고 진술한 점，㉡ 원고는 2009. 12. 18. 이 사건 주식에 관한 명의개서를 마친 후 약 2년 가까이 위 주식을 보유하다가 이 사건 증여세가 부과된 후 인 2011. 11.13.경 비로소 박BB에게 이 사건 주식의 소유명의를 이전하여 준 점，㉢ 박BB가 위 「기간 중 이 사건 주식에 관하여 이익배당청구권， 의결권， 주주제안권 등 주주로서의 권리를 행사하였다고 볼 만한 사정을 전혀 찾아볼 수 없는 점 등에 비추 어，원고의 위 주장도 선뜻 믿기 어렵다.

⑥ Since ParkB was the wife of the representative director of the non-party company and was holding the non-party company’s non-listed stocks at the time of December 2009, it is sufficient that the non-party company could have predicted the stock price according to the listing on the non-party company’s KOSDAQ and donated the shares to the spouse in advance.

(3) Sub-decisions

Therefore, the defendant's disposition of this case is legitimate, which imposed the gift tax rate on the plaintiff by deeming that the plaintiff was donated the shares of this case from ParkB.

3. Conclusion

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