상속세및증여세법 제45조의 2 규정에 대한 폐지론 - 조세소송의 증명책임을 중심으로 -

It is needless to say that tax litigation is a kind of administrative litigation. Since taxpayers have many tax materials, tax authority could not expect taxpayers' honesty. Thus the change of burden of proof have been tried from the legislative point of view, and, as the representative example of that trial, there is the article 45-2 of the Inheritance Tax and Gift Tax Act. However, the above provision has a problem from the view point of the burden of proof. In addition, there is a problem related to the regulation on movable property and immovable property. Specifically, the article 45-2 of the Inheritance Tax and Gift Tax Act regulates a trust of movable property and the Act on the Registration of Real Estate Under Actual Titleholder's Name regulates a trust of immovable property even if both are the same title trust from the legal principles. This is discrepant with the whole legal system from the fact that not tax but penalty surcharge, charge for compelling the performance, or punishment would be imposed when there is the violation of the Act on the Registration of Real Estate Under Actual Titleholder's Name. Also, on account of the revision of the Inheritance Tax and Gift Tax Act in 2003, is converted into the administrative law's own concept of gift, all-inclusive theory, which is different from the concept of gift in private law. The above mentioned problems cause to decrease the necessity of maintenance of the article 45-2. In conclusion, it is necessary that the article 45-2 should be abolished, and the general principles in tax litigation should be used. Further, legislative decision is demanded to settle the difference between the Registration of Real Estate Under Actual Titleholder's Name and the Inheritance Tax and Gift Tax Act.