피상속인이 비거주자인 경우상속세 이중과세의 문제- 대법원 2011.7.14. 선고 2008두4275 판결을 중심으로 -

According to the Inheritance and Gift Tax Law(IGTL), inheritance tax is imposed on the basis of residency of the deceased. If the deceased is a resident, the taxes are levied on the value of all the assets wherever situated. If he is a non-resident, the taxes are levied on the value of the assets situated in Korea only. Under this system double taxation may occur. To avoid double taxation, Korea adopted foreign tax credit articles in IGTL but no tax treaties yet, while countries like the United States and the Japan have tax treaties. Since non-residents have limited tax burden based on the situs of his properties, debt deduction allowed to non-residents is also limited to certain debts such as mortgage debt on the taxed property, etc. Japan also has similar provisions as to debt deduction of non-residents. In the United States, the estate of a non-resident can deduct that proportion of all debts, regardless of what type of debts they are, that the US situs assets are of worldwide assets. In Supreme Court Decision 2008Du4275, the Supreme Court dismissed the plaintiff's claim for debt deduction. The plaintiff, an inheritor of a non-resident deceased, claimed that the deceased's debt which is finalized in a court of Japan and based upon which the property in Korea is seized provisionally, should be deducted from the value of the property taxed. The Supreme Court ruled that IGTL Article 14Paragraph 2 should be construed literally and should be interpreted as limited to what it enumerates. The words of IGTL Article 14 Paragraph 2 makes it hard to interpret the article as including the debt based upon which the property in Korea is seized provisionally. Moreover, interpreting debt deduction article widely may cause risk of false debt deduction claims and difficulties in proving debts. Therefore, as far as the interpretation of current law is concerned, the Supreme Court's conclusion is reasonable. High Court of Japan expressed the same opinion in a similar case on December 16, 2010. However, in terms of prevention of double taxation and substantial capability to pay tax, the provision mentioned above has quite unconstitutional aspects since the taxpayer has no chance to avoid harsh double taxation even though the debt based upon which the property in Korea is seized provisionally is, in its character, similar to mortgage debt enumerated in the provision. The United States' proportional system suggests a reasonable alternative, provided that it is supplemented by strict formalities to debt deduction and duty to report of taxpayers to protect tax revenue from false debt deduction claims.