주식의 명의신탁과 취득세의 과세에 대한 연구 ―대법원 2010. 3. 11. 선고 2009두21369 판결을 중심으로―

Administrative interpretations of whether stock in nominal trust or termi- nation of nominal trust would be liable to pay acquisition taxes still take different views from the Supreme Court even after its Judgment on March 11, 2010 and Decision on 2009Du(두)21369, which were analyzed in this study. Thus the study set out to theoretically review whether stock in nominal trust was an acquisition and if the deemed donation rules for stock in nominal trust would be also applied to the legal fiction of acquisition tax of an oligopoly shareholder. The conclusions were as follows：First, there will be no huge problem with recognizing stock in nominal trust as an acquisition although it is difficult to be considered as an acquisition, which should pay acquisition taxes. Fundamentally, however, there remains a question as to whether it is appropriate to recognize the validity of stock in nominal trust. It will be desirable to take a direction of reducing the recognition scope of stock in nominal trust. Secondly, the deemed donation rules for stock in nominal trust are free from the application of the legal fiction of acquisition tax of an oligopoly shareholder since it is difficult to say that the other necessary had an acquisition in spite of stock in nominal trust as a deemed donation. In such a case, an oligopoly shareholder emerges in case of company establishment rather than termination of nominal trust. Finally, the precedents of the Supreme Court state that donation taxes and legal fiction of acquisition tax are not contradictory when an oligopoly shareholder paid donation taxes for the revealed nominal trust after paying legal fiction of acquisition tax. It will be clearer to state that legal fiction of acquisition tax voluntarily reported and paid is naturally not invalid and accordingly that claim for restitution of unjust enrichment cannot be recognized based on the recognition of such a contradiction.