상속세 및 증여세의 간주․추정규정의 한계

The Korean Inheritance and Gift Tax Act (“IGTA”) sets forth a couple of provisions which deem certain types of property acquired by the taxpayer as inherited or gifted. The IGTA also has other provisions which presume that the taxpayer has inherited or has been gifted certain property even if he actually has is not clear. Such provisions are necessary because the tax authorities sometimes find it difficult to prove that the taxpayer has inherited certain property or that he has been made a gift. One of the reasons for such difficulty is that the IGTA comprehensively taxes any property rights that have been inherited or gifted no matter what types of property rights are involved. The other reason is that a succession or gift almost always occurs between closely related parties. This article analyzes the aforementioned deeming or presuming provisions of the IGTA and discusses why and to what extent they can be justified. This article demonstrates that the deemed succession provisions are justified as far as he deemed property rights are no different in substance from that acquired by means of succession. This article also examines in length whether the ever controversial deemed gift provision, which imposes gift tax to the taxpayer who allowed another taxpayer to register his own property under the former's name, can be justified in light of what we recognize as the basic principles of the tax law. Lastly, this article discusses the succession―or gift―presumption provisions of the IGTA and concludes that such presumptive provisions, which in effect shift burden of proof to the taxpayer, are justifiable only when it is well substantiated that such shift is necessary, and that it is easier for the taxpayer to prove the non-existence of the succession or gift because most of the relevant evidences are accessible only by the taxpayer.