흑자법인에 대한 증여시 주주에 대한 증여세 과세 여부

The Unlimited Comprehensive Taxation System (“UCT”), which is a tax scheme that imposes gift tax on transfer of wealth regardless of the form of transaction, was introduced to the Inheritance and Gift Tax Act (the “IGTA”) and came into effect starting January 1, 2004. The policy purpose behind the UCT is to achieve equity in taxation, which is a principle that taxes should be fair and should be based on different people’s ability to pay taxes. For several years after the UTCS first came into effect, however, there had been virtually no gift tax case on which the UTC was actually applied. This was so until the Gift Taxation on Increased Corporation Value through Intra-Group Transactions was introduced on January 1, 2012. Sine then the tax authorities have actively implemented the UTC. Recently, numbers of the gift tax assessments which were made based on Article 2(3), 35, 41 and 42 of the IGTA are increasing in connection with the cases where transfer of wealth is made thorough indirect gift to certain controlled corporations (e.g., non-arm’s length price transactions between related parties, giving donation to profitable corporations, etc.). With respect to such gift tax cases, there could be controversies whether or not they violate essential part of the [Principle of Proportionality] and the Property Right guaranteed under the Constitutional Law, given that they are related to taxation on unrealized profit. Furthermore, it must be considered and concluded in advance (i) whether Article 2(3) of the IGTA itself is unconstitutional and (ii) what the appropriate evaluation method is for the taxable gift for shareholders when they benefit from the increased value of controlled corporations. Otherwise, it is likely that the taxation on shareholders, who merely own the equity shares in the corporation which receives the gifts, will be considered unconstitutional since this may violate the Principle of Proportionality and the Property Right under the Constitutional Law. However, according to Article 2(3) of the IGTA, it is “transfer of wealth” and the “increase of property value by contribution” which constitute the basic two elements for imposing gift tax. In other words, these two elements are essential parts of tax requisition for the gift tax. Given that the formalities of two elements could be implemented in various forms and constantly changing, it is necessary to delegate the task of legislating the detailed scope of these elements (i.e., taxable cases and evaluation methods) to the sub-legislations of the IGTA (e.g., presidential decree of the IGTA), as opposed to stipulate them to the IGTA itself. Furthermore, in light that the tax base of gift tax may be determined by referring Article 33 and 42, it cannot be said that Article 2(3) violates the principle of no taxation without law. Thus, imposition of gift tax solely based on Article 2(3) of the IGTA should be allowed, and this is the position taken by Korean court precedents. However, in order to increase predictability from taxpayers’ perspective, it will be necessary to complement evaluation methods for various types of wealth transfer through legislation. Lastly, even in the case where it is concluded that imposition of gift tax (i) on unrealized profit and (ii) based on Article 2(3) of the IGTA is constitutional, it is still unreasonable to regard the amount of taxable gift received by shareholders as being exactly identical to the income directly incurred at the level of the subject corporation. In order to minimize conflicts between taxpayers and the tax authorities , the amount of taxable gift in the illustrated case may be determined at the difference between the pre-donation share value and the post-donation share value calculated in accordance with the methods prescribed under the IGTA.