보험상품에 대한 세법적 고찰

Insurance products, due to their diversity as well as the flexibility of insurance contracts, are financial products with high possibility of being used in tax avoidance activities. Endowment insurance in particular has the same economic substance as deposits, and therefore the insurance benefits should be levied on in the same way as deposits. However, since endowment insurance is usually sold in combination with life insurance, indemnity insurance or accident insurance,it could be very difficult to levy on endowment insurance separately. On the contrary, it is highly possible that an insurance product with the economic substance of endowment insurance but disguised as life insurance or indemnity insurance escapes from the objects of the income tax. Therefore, Article 16 (1) 10 of the current Income Tax Law defines the concept of insurance in the nature of savings. Profits from this type of insurance products are all levied on as interest, regardless of the classification of insurance products in Commercial Law or Insurance Business Act. It is considered as an appropriate measure against tax avoidance through insurance products as well as for achieving tax equilibrium between insurance in the nature of savings and deposits. However, according to Article 25 (1) 1 of the current Enforcement Decree of Income Tax Act, marginal profits of insurance in the nature of savings are not levied on either when the period from the first payment date to the maturity date is over 10 years, or when the period from the first payment date to the date of early cancellation is less than 10 years but the insurance money is refunded in a form other than fixed annuity. This excludes the majority of marginal profits of insurance in the nature of savings from the objects of taxation, and contradicts the initial objectives of achieving tax equilibrium between insurance in the nature of savings and deposits and preventing tax avoidance through insurance products, which is inappropriate. It is necessary to delete Article 25 (1) 1 of the current Enforcement Decree of Income Tax Act and clarify the principles of taxation on insurance in the nature of savings. On the other hand, insurance products can have third parties as the beneficiaries, and they also have the advantage of flexibility in contract modification, including changing beneficiaries or policyholders. From the view of anti-tax avoidance, because changing the policyholder is actually an act of transferring all the property rights under the insurance contract to the new policyholder with no consideration, it is proper to levy gift tax on the new policyholder at the time of changing the policyholder. Nonetheless, according to judicial interpretations, changing the policyholder does not constitute donation until an insured event occurs. The Income Tax Law stipulates the timing of tax as the time of contract termination before which the policyholder will not be levied on. On the matter of changing the policyholder, the current judicial interpretations and Income Tax Law neglect the effectiveness of changing the policyholder in private law, and so they cannot be considered as appropriate countermeasures against tax avoidance through changing the policyholder. Therefore, it is necessary that Article 45, item 8 of the current Enforcement Decree of Income Tax Act,which stipulates the timing of tax on insurance in the nature of savings,be amended as follows: changing the policyholder is deemed as termination of the insurance contract.