명의신탁의 증여의제 제도의 문제점 및 개선방안

Section 45－2 of the Inheritance Tax and Gift Tax Law(“ITGTL”) provides that, in the case where any specified assets other than real estates being transferable by registration is registered in the name other than the actual owner’s, the market price of the relevant assets shall be deemed to be donated by the actual owner to the nominal owner(the owner in registration) and the latter shall be subject to gift tax. First of all, because of its exceptionality that a gift tax is levied on the non－gift case, its reasonableness has been debated since it was introduced early in 70s. In addition to such a basic issue, the author raises here several practical issues derived from this unreasonable scheme of taxation. One of them is the tax payers’ excessive compliance cost. This rule is not applied when the false registration is done for the purpose other than tax avoidance. Therefore, nominal owners can avoid taxation by proving his non-tax-avoidance purpose. Since proving such a subjective matter is not easy and mostly fails to satisfy the tax authority, however, most taxpayers are compelled to go to court to fight against the unfair tax levied on them, even though the court also does not have any useful tool to judge the taxpayers’ purpose. After all, constructive gift tax results in explosion of tax litigation which cannot produce fair ruling that satisfies the taxpayers. The author also points out the problems arising from the sanctioning effect of this rule. From the viewpoint of reasonableness of sanction, The heaviness of the punishment should depend on the degree of wrongfulness, and, if this principle is applied to the constructive gift case, the volume of the tax should be decided focusing on blaming the tax avoidance purpose. But the amount of the constructive gift tax is determined depending on the price of the relevant assets regardless whatever the taxpayers’ purpose is. It means taxpayers’ property right is evaded without any reasonable ground. With additional several reasonings, the author suggests that Section 45－2 of ITGTL should be abolished and legal construction of gift should be replaced by presumption of donation. On the premise that this rule continues, as a second best, the author argues that the surtax with high rate shall be used as a tool to suppress false registrations instead of the current rule.