Open Decision Ledger · Tax & international taxation
Nominee shareholding, presumed tax purpose and unlisted share valuation
Supreme Court, July 11, 2019, 2016Du46380 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 증여세부과처분취소
Official text on the National Law Information Center
Question
Where shares allotted to the plaintiff's name in a paid-in capital increase were registered in the name of a person other than the actual owner, must the acquisition be treated as a gift under Article 45-2 of the former Inheritance and Gift Tax Act unless the absence of a tax-avoidance purpose is proved, and is valuation per share by the weighted net-earnings and net-asset value lawful?
Holding
The appeal was dismissed. The Supreme Court found no error in the court below holding that, under Article 45-2(1)(i) and (2) of the former Inheritance and Gift Tax Act, registration in the plaintiff's name raised a presumption of a tax-avoidance purpose, and that the plaintiff had not proved either a clear purpose wholly unrelated to tax avoidance or that there was no tax to avoid at the time of the nominee arrangement or in the future. It also found no error in taking the issue price of KRW 24,940 per share as not reflecting the objective exchange value at the valuation date, in valuing the shares under Article 54(1) of the Decree by the weighted net-earnings and net-asset value rather than by net asset value alone, or in holding that the stock-change inspection of February 2012 was not a re-audit prohibited by Article 81-4(2) of the former Framework Act on National Taxes.
Points at issue, verbatim
위 주식의 명의신탁에 조세회피의 목적이 없었다는 점에 대한 증명이 없고, 구 상속세 및 증여세법 시행령 제54조 제1항에 따라 순손익가치와 순자산가치에 의하여 주식의 1주당 가액을 평가한 위 처분의 가액평가 방법이 적법하다고 본 원심판단을 수긍한 사례
Unofficial English translation
there was no proof as to the fact that there was no purpose of tax avoidance in the entrusting of the title of the shares in question, and that the method of valuation of the value of the above disposition, which valued the value per share of the shares on the basis of the net profit and loss value and the net asset value pursuant to Article 54 (1) of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act, was lawful, is a case in which the appellate court's determination is affirmed
Disposition
Dismissed Stated in the decision
상고를 기각한다. 상고비용은 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The costs of the final appeal shall be borne by the plaintiff.
Form of the test
Existing test applied Read from the decision
구 상속세 및 증여세법 시행령 제54조 제1항에 따라 순손익가치와 순자산가치에 의하여 주식의 1주당 가액을 평가한 위 처분의 가액평가 방법이 적법하다고 본 원심판단을 수긍한 사례
Unofficial English translation
the method of valuation of the value of the above disposition, which valued the value per share of the shares on the basis of the net profit and loss value and the net asset value pursuant to Article 54 (1) of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act, was lawful, is a case in which the appellate court's determination is affirmed
Factors
- 위 주식의 명의신탁에 조세회피의 목적이 없었다는 점에 대한 증명이 없고
- 구 상속세 및 증여세법 시행령 제54조 제1항에 따라 순손익가치와 순자산가치에 의하여 주식의 1주당 가액을 평가한
Unofficial English translation
• there was no proof as to the fact that there was no purpose of tax avoidance in the entrusting of the title of the shares in question, and
• which valued the value per share of the shares on the basis of the net profit and loss value and the net asset value pursuant to Article 54 (1) of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act
Relation to precedent
Cannot be determined Not in the decision
Decisions referred to
해당 본문 참조
Burden of proof
The party asserting Read from the decision
조세회피의 목적이 없었다고 인정될 정도로 조세회피와 상관없는 뚜렷한 목적이 있었다거나 그 명의신탁 당시나 장래에 회피할 조세가 없었다는 점에 관하여 증명이 부족하다고 판단하였다
Unofficial English translation
it was found that the proof was insufficient as to whether there was a clear purpose unrelated to tax avoidance sufficient to be recognized as having no purpose of tax avoidance, or that there was no tax to be avoided at the time of the entrusting of the title or in the future
Open question and revisit condition
What evidence could show that the issue price of newly issued shares properly reflected their objective exchange value at the valuation date, so that it counts as market price?
A later Supreme Court decision on the presumption of a tax-avoidance purpose in Article 45-2, on valuing unlisted shares outside the three-to-two weighted method, or on Article 81-4(2) of the Framework Act on National Taxes would require this entry to be read again, as would any amendment to those provisions. So would new material showing a purpose unrelated to tax avoidance, or a market transaction in the company's shares near the valuation date.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-26
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 7 (burden of proof).
Axis 7 (Burden of proof): Primary “The party asserting” vs Independent “Not addressed”
The source phrase about lack of proof of no avoidance purpose lets the primary read an allocation to the taxpayer while the independent reads it as a mere failure of proof without naming allocation.
조세회피의 목적이 없었다고 인정될 정도로 조세회피와 상관없는 뚜렷한 목적이 있었다거나 그 명의신탁 당시나 장래에 회피할 조세가 없었다는 점에 관하여 증명이 부족하다고 판단하였다Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 6 July 2016 (2015Nu63540), held that non-party 1 had paid the subscription money and thereby nominated the shares into the plaintiff's name, and that the plaintiff had not proved either a clear purpose unrelated to tax avoidance or the absence of any tax to avoid, so that Article 45-2 of the former Inheritance and Gift Tax Act applied. It held that the issue price of KRW 24,940 per share showed nothing indicating that it properly reflected the objective exchange value at the valuation date and so could not be taken as market price, that there was no basis for valuing the shares by net asset value alone under Article 54(4) of the Decree, and that the weighted valuation was lawful; the stock-change inspection of February 2012 was not a re-audit prohibited by Article 81-4(2) of the former Framework Act on National Taxes.
Supreme Court standard: The Supreme Court examined the record against the provisions and the related law and found no error in any of the three grounds of appeal: no misreading of the requirements and interpretation of Article 45-2, no misreading of the market price question or the method of valuing the shares, and no misreading of the law on repeated tax audits or breach of the rules of evidence. The Justices unanimously dismissed the appeal and placed the appeal costs on the plaintiff.
Distinguishing conditions
- A nominee arrangement where the party seeking the benefit of the proviso proves a clear purpose unrelated to tax avoidance, or proves that there was no tax to avoid at the time of the arrangement or in the future.
- New shares whose issue price properly reflects their objective exchange value at the valuation date, so that it may be taken as the market price under Article 60 of the former Act.
- Unlisted shares for which grounds under Article 54(4) of the Decree permit valuation by net asset value alone.
Record verification notes
Fix first which versions govern: the Inheritance and Gift Tax Act as in force before its amendment by Law No. 8828 of 31 December 2007 and its Decree as in force before its amendment by Presidential Decree No. 20621 of 22 February 2008, and the Framework Act on National Taxes as in force before its amendment by Law No. 11604 of 1 January 2013. Then gather what the plaintiff can put forward on purpose, because the presumption of a tax-avoidance purpose stands unless that proof is made. Finally compare the share figures used: the issue price of KRW 24,940 per share, the first valuation of KRW 136,025, and the revised valuation of KRW 105,773 that followed the tax tribunal's decision of 26 November 2014.
From the official text
Points at issue
갑 주식회사의 대표이사였던 을이 갑 회사의 주식을 전부 양수하면서 그중 일부를 병에게 명의신탁하였고, 이후 병이 그 명의로 유상증자주식을 배정받았는데, 관할 세무서장이 병에게 구 상속세 및 증여세법 제45조의2를 적용하여 증여분에 대한 증여세를 경정·고지하였다가, ‘갑 회사가 유상증자로 발행한 주식의 평가를 위한 1주당 순손익액 계산 시 유상증자 주식 수를 반영한 순손익가치로 산정하여 과세표준 및 세액을 경정한다’는 내용의 조세심판원의 결정에 따라 명의신탁된 주식의 가치를 평가하여 병에게 부과된 증여세액 중 일부를 감액하는 결정을 한 사안에서, 위 주식의 명의신탁에 조세회피의 목적이 없었다는 점에 대한 증명이 없고, 구 상속세 및 증여세법 시행령 제54조 제1항에 따라 순손익가치와 순자산가치에 의하여 주식의 1주당 가액을 평가한 위 처분의 가액평가 방법이 적법하다고 본 원심판단을 수긍한 사례
Unofficial English translation
B, who was the representative director of Company A, acquired all of the shares of Company A, and in so doing entrusted the title of some of them to C, and thereafter C was allotted shares issued as a paid-in capital increase in that name, whereupon the competent district tax office director applied Article 45-2 of the former Inheritance Tax and Gift Tax Act to C, reassessed and gave notice of gift tax on the gifted portion, and then, in a case where, pursuant to the decision of the Tax Tribunal to the effect that "the tax base and the tax amount are reassessed by calculating, when calculating the net profit and loss amount per share for the valuation of the shares issued by Company A through the paid-in capital increase, the value as the net profit and loss value reflecting the number of shares issued as the paid-in capital increase," a decision was rendered to reduce a portion of the amount of gift tax imposed on C by valuing the shares whose title had been entrusted, a case in which the appellate court's determination, to the effect that there was no proof as to the fact that there was no purpose of tax avoidance in the entrusting of the title of the shares in question, and that the method of valuation of the value of the above disposition, which valued the value per share of the shares on the basis of the net profit and loss value and the net asset value pursuant to Article 54 (1) of the Enforcement Decree of the former Inheritance Tax and Gift Tax Act, was lawful, is affirmed
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다. 상고비용은 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The costs of the final appeal shall be borne by the plaintiff.
Provisions referred to
구 상속세 및 증여세법(2007. 12. 31. 법률 제8828호로 개정되기 전의 것) 제45조의2 제1항 제1호, 제2항(현행 제45조의2 제3항 참조), 제3항, 제60조 제1항, 제2항, 제63조 제1항 제1호 (다)목[현행 제63조 제1항 제1호 (나)목 참조], 구 상속세 및 증여세법 시행령(2008. 2. 22. 대통령령 제20621호로 개정되기 전의 것) 제54조 제1항, 제2항, 제4항
Read 2026-10-26 · Cross-read 2026-10-26. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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