2010년 상속세 및 증여세법 판례 회고

This article aims to review and examine a selection of the important Korean Supreme Court cases concerning inheritance and gift tax adjudicated in 2010 in order to determine their potential implications in practice. The selected cases consist of 5 Supreme Court decisions published in the decision report, 1 case adjudicated by the Constitutional Court, and 5 unpublished Supreme Court decisions expected to have significant implications. These decisions are classified under 11 subtopics, which are regrouped as follows based on their contents：ⅰ) determination of the residence of the deceased and application of the tax credit related to inheritance tax,ⅱ) calculation method for the market value,ⅲ) burden of proof and its scope after the amendment of the rules regarding the gifting of funds used to acquire property, and ⅳ) follow-up measures for gift tax exemption in respect of a non-profit corporation, and ⅴ) other procedural issues. Annotation of cases consists of summary of facts, issues, and substance of the decisions and comments thereon, with a direct comparison of the original decision and the Supreme Court decision where appropriate. The noteworthy decisions issued this year include the Supreme Court Decision No. 2008Du9140 adjudicated on January 13, 2011 and the Supreme Court Decision No. 2010Du4421 adjudicated on January 27, 2011, which con- cerned the calculation of the market value of listed shares and the applicability of “control premium" stipulated in the law. These decisions are expected to be followed by further research on the reasonableness of such decisions and their implications in practice. Another noteworthy decision seems to be the Supreme Court Decision No. 2007Du5646 adjudicated on January 14, 2010, which ad- dressed the issue of the appraisal method for unlisted foreign shares. Potential implications of this decision in practice would need to be closely monitored going forward. In addition to the Supreme Court decisions covered by this article, other evolving tax cases in 2010 reveal that the Korean tax authority kicked off full-fledged application of the all－inclusive gift tax theory under the Inheritance Tax and Gift Tax Act. Against the backdrop of wide-ranging tax saving and evasion schemes involving cross-border transactions, which the tax authority continues to uncover, it is anticipated that the tax authority will continue to exert significant efforts for application of the all-inclusive gift tax theory going forward. Future decisions by the courts concerning tax assess- ments in this respect would be closely monitored by taxpayers and tax practitioners.