주식교환방식 등의 우회상장 관련 증여세 과세의 문제점 및 그 대안

According to Article 35－2 of the Inheritance and Gift Tax, gift tax can be imposed on trades made with lower or higher price than market one between persons who do not have special relationship. This article, however, is usually abused by tax authorities. This paper deals with such abusive taxation in the field of indirect listing(Uhoe sangchang). Here are two kinds of examples：(1) when a major shareholder of an unlisted company sold his/her stocks to a listed company and acquired the stocks of the listed company, the tax authority imposed gift tax on such a shareholder because he or she sold the stocks with expensive price；and (2) whereas an unlisted company wanted listing of it’s stocks, a major shareholder of a listed company was unlikely to continue listing. Therefore the major shareholder of listed company and the unlisted company agreed that (ⅰ) the major shareholder sold his/her stocks to the unlisted company；(ⅱ) the unlisted company cooperated with the spin off of the listed company；and (ⅲ) the major shareholder purchased the company made by spinoff. In this case, tax authorities usually imposed a gift tax on the major shareholders with the reason that the agreed price of stocks of listed companies exceeds the market price of such stocks. However, it is not reasonable to impose gift tax on a trade between the parties of non-special relationship. It is necessary to analyze substance of a trade and then to impose a tax according to analyzed results. This paper concludes that：(ⅰ) gift tax is not appropriate with the two examples；(ⅱ) regarding to the first example, it is proper to impose the capital gain tax. However, theoretically, dividend taxation could be an alternative method；and (ⅲ) regarding to the second example, it is proper to impose the capital gain tax. Theoretically, there is an another taxation method of Gita income taxation in accordance with Article 21 of the Income Tax Law.