There is no ground to acknowledge that the Plaintiff received title trust for the shares of this case

Since there is no ground to acknowledge that the Plaintiff agreed on title trust at the time of issuing new shares, the instant disposition is unreasonable.

Article 45-2 of the Inheritance Tax and Gift Tax Act

2015Guhap5080 Revocation of Disposition of Imposition of Gift Tax

Park AA

00. Head of tax office

September 25, 2015

October 30, 2015

1. Each disposition of KRW 00,000,000 (including additional tax of KRW 00,000,000 and additional tax of KRW 00,000,000 for unfaithful return) that the Defendant against the Plaintiff on April 1, 2014 (including additional tax of KRW 00,000,000 for unfaithful return and additional tax of KRW 00,000 for unfaithful return) and each disposition of KRW 00,000 for unfaithful return shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On October 13, 2006, the plaintiff is the non-party B's spouse, and the non-party B's branch is the non-party B's spouse, and the non-party B's largestCC accepted D's new shares 00,000 shares (in the name of the plaintiff, KRW 00,000 per share, KRW 00,000 per share, and KRW 000,000,000,000 per share; hereinafter "the non-party 1 shares"), and in relation to the EE (the non-party 2's dissolution on October 7, 2008, hereinafter referred to as "EE"), the plaintiff's total acquisition price of new shares 1,00,000 won per share (the plaintiff's total acquisition price of new shares 1,000,000 won per share, KRW 2,0000,000 per share, 200,000.

B. From May 13, 2013 to December 20, 2013, the Seoul Regional Tax Office conducted a tax investigation with respect to the largestCC, and deemed that the largestCC was a nominal title trust with the Plaintiff, and notified the Defendant that gift tax should be imposed on the Plaintiff in accordance with the provision on constructive gift of title trust property under the Inheritance Tax and Gift Tax Act.

C. Accordingly, on April 1, 2014, the Defendant imposed gift tax on the Plaintiff as follows.

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on June 30, 2014, but the Tax Tribunal dismissed the Plaintiff’s appeal on November 26, 2014.

D. On June 2, 2015, the Defendant revoked the first imposition disposition on the shares of this case on June 2, 2015, and the amount of the second imposition disposition is KRW 00,000,000 (including additional tax of KRW 00,000,000 and additional tax for unfaithful return), and the amount of the third imposition disposition is KRW 00,000,000 (including additional tax of KRW 00,000,000 and additional tax for unfaithful return), each of which was revised (including additional tax of KRW 00,000,000 as above, and additional tax for unfaithful return) (hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3, 12 to 15 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the case of the second shares, this case’s second shares acquired the Plaintiff’s name by stealing the Plaintiff’s name in accordance with the direction of the highestCC, and in the case of the third shares of this case, the largestCC acquired by stealing the Plaintiff’s name. In other words, the Plaintiff did not allow the use of the Plaintiff’s name in relation to the acquisition of the second and third shares, or agreed on the title trust, and thus, the disposition of this case made on a different premise

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the agreement on title trust is recognized

A) Article 45-2(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”) is applicable in cases where the actual owner and the nominal owner enter into an agreement or communication and make registration, etc. in the name of the nominal owner in order to transfer or exercise the right (see, e.g., Supreme Court Decision 2007Du15780, Feb. 14, 2008).

B) Based on the above legal principles, comprehensively taking into account the following circumstances acknowledged by comprehensively taking into account the health team, the evidence mentioned above acknowledged facts, and the statements mentioned in Gap evidence Nos. 8, 9, 11 through 14, 16, and 18, the testimony of witnesses KimG, and LeeB, and the overall purport of the pleadings, it is reasonable to deem that the Plaintiff’s acquisition of shares Nos. 2 and 3 of this case under the Plaintiff’s name was unilaterally conducted by the highestCC and LeeB regardless of the Plaintiff’s intent, and it is insufficient to recognize that the respective statements stated in Nos. 4 through 7 of this case between the Plaintiff and the largestCC or LeeB had reached an agreement or communication on the title trust of the shares Nos. 2 and 3 of this case with

① In order to underwrite new shares, the holder of the title deed must submit the subscription note signed and sealed or signed by him (Article 425(1), Article 302 of the Commercial Act), and the Plaintiff did not submit the subscription note signed and sealed or signed by him with respect to the acquisition of the 2,3 shares of this case, and the witnessB also testified that not only the Plaintiff but also himself did not sign the subscription note.

② At the time of the acquisition of the instant 2 shares, the Plaintiff deposited KRW 00 million in the savings deposit passbook in the Plaintiff’s name under the direction of the largestCC, and then remitted this account to the EE’s account. However, the said account appears to have been opened on June 22, 2006, and there was no transaction at all until the said KRW 00 billion was deposited and withdrawn on May 16, 2007 after the payment was made on the next day. In addition, the Plaintiff was departing from a foreign country on May 15, 2007 and was not in the Republic of Korea on the said date, and the said account was used for its own needs after this was opened in the Plaintiff’s name on the grounds of business necessity, and the said account was not only at the time of the acquisition of the instant 2 shares but also after the said payment was made separately to the Plaintiff.

③ In acquiring the third shares of this case, no account was used in the name of the Plaintiff, and even based on the B’s written statement (No. 7-1) that the Defendant mainly based on the instant disposition, this BB also transferred its content after the payment of capital increase with consideration under the Plaintiff’s name by the employees of the largestCC, without participating in the acquisition of the said shares. Therefore, it cannot be deemed that there was any agreement between the largestCC and the Plaintiff at the time of the acquisition of the said shares.

④ The witnessB stated that the Plaintiff consented to the acquisition of EE’s stocks or made oral understanding to the Plaintiff through this court’s testimony and confirmation document, and the Plaintiff always used the Plaintiff’s seal to open an account without obtaining any separate consent from the Plaintiff, and that the request for explanation regarding the acquisition of EE’s stocks, including the 2 and 3 stocks, was prepared and submitted to the tax authority in the same form without notifying the Plaintiff after all of the Plaintiff’s receipt. The witness KimG also received the notice of taxation on the instant disposition from the Seoul regional tax office around the end of 2013, and then asked the witness who asked the Plaintiff of the legal issues at ordinary. After that, the Plaintiff and the witness visited the Plaintiff and the Seoul regional tax office to submit evidentiary documents, and presented the testimony to the Plaintiff.

⑤ Although the statute of limitations was completed, the Plaintiff was subject to a disposition that was not authorized to institute a public prosecution by the prosecution. However, around February 2014, the Plaintiff filed a criminal complaint against BB and LCC, etc. on the charge of forging private documents and exercising the relevant investigation document, and was rendered a divorce judgment on August 27, 2015 by filing a divorce lawsuit against BB.

④ According to the evidence Nos. 4, 5-1 through 3, 5-1 through 7-1, 7-1, and B’s testimony, this BB lent its name and the Plaintiff’s name to DD capital increase with the request of the leastCC in 000 prosecutor’s office around October 13, 2006. Thereafter, even at the time of payment of EEE’s capital, the Plaintiff lent its name upon the request of the highestCC, and on May 16, 2007, the Plaintiff was also registered as the shareholder of the above company and lent its name to the highestCC. In relation to the tax investigation into EE on December 23, 2008, the Seoul regional tax office submitted a written statement to explain the source of the share price paid to the Plaintiff in the process of acquiring 2 and 3 shares, and the Plaintiff’s request for the explanation submitted as to the Plaintiff’s seal imprint was also acknowledged.

However, the statement was submitted by this B to the relevant prosecutor's office under investigation by the prosecutor's office with respect to the leastCC's criminal case. It was not clearly stated in BB's name or signature and the date of preparation. The main contents of the above statement are lending the name of the Plaintiff and the Plaintiff upon request by the leastCC with respect to the acquisition of stocks of DD and EE, and it was merely the cooperation with the Plaintiff in acquiring the stocks of the largestCC. It is difficult to say that the Plaintiff and the largestCC have explicitly acknowledged that there was a title trust agreement between the Plaintiff and the Plaintiff. The fact that the Plaintiff used the Plaintiff's name without the Plaintiff's consent can be led to the confession of criminal facts. The above statement and the data related to the source of funds (No. 5-1 through 3) were not prepared and presented to the Plaintiff under the name of the Plaintiff's request to explain that it was necessary to obtain the stocks of this case without the Plaintiff's consent to use the title trust agreement or to inform the Plaintiff of the fact that it did not have been presented under the name name of the above.

2) Sub-determination

Therefore, the disposition of this case, which was made by applying Article 45-2(1) of the former Inheritance Tax and Gift Tax Act on the premise that there was a title trust agreement between the Plaintiff and the largestCC on the second and third shares, is unlawful, and the Plaintiff’s assertion is with merit.

3. Conclusion

The plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.