조세피난처에 설립된 페이퍼컴퍼니를 이용한 차명주식거래에 대한 명의신탁 증여의제 법리적용의 당부 - 대법원 2020.8.20. 선고 2020두32227 판결을 중심으로 -

With regard to tax avoidance using tax havens of residents and domestic corporations, the application of title trust property gift simulation provisions under the Inheritance and Gift Tax Act is problematic. Despite the fact that foreign assets trusted by a foreign profit-making corporation are not subject to gift tax, there is room for dispute as to whether the provisions of gift simulation of title trust property will be applied to the act of establishing SPC in the tax haven and acquiring shares of domestic corporations (hereinafter referred to as "shares in this case") in the name of SPC or in the name of foreign financial institution after each SPC and foreign financial institution enters into a custodian contract. The gift simulation of the title trust property has the following step-by-step structure. First of all, the existence of a name trust relationship is a first-phase requirement for the gift simulation (art. 45-2 (1) of the Inheritance and Gift Tax Act). At this step, the taxation authorities must first demonstrate that there is an agreement between the actual owner and the name holder to own the stock internally, but the stockholder list must have been signed before the nameholder, and that the name change has been made in accordance with the above agreement. Once a name trust is proven, the next step is to estimate the purpose of tax avoidance for that proven name trust (art. 45 (3) of the Inheritance and Gift Tax Act). If the taxation authorities succeed in proving the existence of a name trust relationship and, by extension, in assuming the existence of a tax avoidance purpose, a gift simulatin is implemented as a third step (art 45-2 (1) of the Inheritance and Gift Tax Act). The question is how to acknowledge the existence of a "name trust agreement." The Appeals Tribunal ruled that the SPC established in the tax haven is an independent entity of rights and obligations distinct from the plaintiff, who is a single-person shareholder, and that each SPC entered into the stockholder's list under SPC's name or under the name of an foreign financial institution, so it was insufficient to acknowledge that there was an agreement between the plaintiff and each SPC and the foreign financial institution on the name of the share. However, if the title is C, and the plaintiff acquires the shares in that name with the consent of C, it may be considered that the C’s permission itself to use the title presumes at least an implied name title trust agreement. In addition, for each SPC case except C, the ownership of shares in the case belongs to each SPC, the investor, as long as the legal nature of the custodian contract is seen as an lease or delegation contract between the SPC and the foreign financial institution that signed the custodian contract. And between each SPC and the plaintiff, the existence of a 'name trust agreement' between each SPC and the plaintiff will be able to be recognized, considering the fact that the personal information of the plaintiff, the actual owner of each SPC-held account, was submitted when opening an foreign financial account, and the Supreme Court's ruling that recognized the existence of a name trust agreement only by SPC's trust declaration. Therefore, the gift simulation of the title trust property should be considered possible