소득과 수증의 과세상 관계에 관한 고찰

Although the economic value acquired without paying proper consideration (“consideration-free acquisition”) is included in the concept of ‘income’ since such consideration-free acquisition is also a kind of ‘increase of net asset value’ of a certain taxable year, Korean tax system discerns such consideration- free acquisition from the concept of income, and taxes such consideration-free aquisition under the name of ‘gift’. In other words, whereas consideration-free acquisition of a corporation is included in the category of income as is other type of revenue, consideration-free acquisition of an individual is not included in the concept of income but is subject to the gift tax. Because taxation system of income and gift is different in many respects such as tax rate, deductible amount, etc., it is very important to discern whether a certain item of revenue is acquired free of consideration or with the payment of consideration. It is well established in other developed countries by court precedents and academic commentaries that if the transfer of an economic benefit was generated from the ‘motive of transferring the economic benefit' without receiving from the payee any consideration reducible to a value in money or money's worth(i.e., donative intent) when assessed from the objective point of view in considera- tion of all the facts and circumstances related to the payment, such receipt of an economic benefit is to be interpreted as a ‘gift’. Even if there are no literal provisions in the current tax laws of Korea, Korean tax laws should also be interpreted in the same effect. So far as the property acquired with the payment of consideration is taxed as an ‘income’ and that acquired free of consideration is taxed as a ‘gift’, if a part of a property is acquired free of consideration and the remainder of the property is acquired with the payment of consideration in a single transaction(“dual character transaction”), the part acquired with the payment of consideration should be taxed as an income pursuant to the rule of income taxation and the remainder part acquired free of consideration should be taxed as a gift under the rule of gift taxation. Nevertheless, the current tax laws of Korea treat that capital gains are not realized from a ‘burdened gift’ that is one of typical dual character transaction, whereas capital gains are realized from the transfer of property at the price lower or higher than fair market value that is another typical type of dual character transaction. This means that tax consequences of partial consideration- free transactions which are of same character in an economic sense, may be different depending on the legal method of transaction chosen by taxpayer. This result is not justifiable and thus, should be corrected. On the other hand, it is not also consistent with the principle of discerning ‘gift’ from ‘income’ to treat as the receiver’s income the economic benefit transferred by a corporation to its specially related person through a transaction rendered at a lower or higher price than the fair market value. This type of lower or higher-price transaction is not different from other types of lower or higher-price transac- tion in that the amount equivalent to the difference between the fair market value and the price applied by the parties is transferred free of consideration from one party to the other party and therefore, should be treated the same in taxation. The economic benefit received by a taxpayer free of consideration in a lower or higher-price transaction should be taxed as a ‘gift’. Otherwise, if the amount equivalent to the fair market value and the price applied by the parties is assessed to be received as the consideration for a certain kind of counter- payment, that amount should be taxed as an ‘income’ and at the same time the payer of the income should be allowed to deduct that amount as expenses for the purpose of calculating taxable income. Lastly, it is clear that gift tax can not be imposed on the economic benefit obtained by a taxpayer in a consideration-free transaction if such economic benefit is subject to income tax according to a special rule of that effect. In this regard, ‘subject to income tax’ should be interpreted to mean that such economic benefit is listed in the tax law as the object of individual or corporate income taxation rather than to mean that individual or corporate income tax be actually imposed on the economic benefit.