조세회피방지를 위한 증여세 완전포괄주의 적용의 의의와 한계

‘Inheritance Tax and Gift Tax Act’ gives a definition of ‘gift’, which differs from the civil definition of ‘gift’, and has descriptive regulations in regard to this. This is to prepare grounds to impose taxes on transactions that gratuitously transfer wealth and thus avoid the gift tax. Since the ‘Gift Tax Act’ was enacted in April 1950, there have been numerous legal actions against the avoidance of tax caused by the gratuitous transfer of wealth. For example, in December 2003, the Inheritance Tax and Gift Tax Act was added with a new clause (Article 2 (3)), which introduced comprehensive taxation. In January 2013, the general principles was formulated with respect to the calculation of donated property (Article 23 of the Inheritance Tax and Gift Tax Act), and in August 2013, profitable enterprises were added to the donation of profits made from transactions with specific corporations (Article 41 of the Inheritance Tax and Gift Tax Act). On the other side, there used to be law revisions to prevent the gift tax from being imposed even on the gratuitous transfer of wealth that does not have much to do with the avoidance of tax, for the purpose of clearly defining boundaries and to present the taxable amount of gift tax. Likewise, the Supreme Court inhibited the overextension of gift tax, e.g., cases where regulations on deemed donation are inhibited from being overextended (Supreme Court Decision 78Nu423, Apr. 24, 1979, etc.) and where the burden of proof, given to unaffiliated persons, was reversed (Supreme Court Decision 2011Du22075, Dec. 22, 2011, etc.). This study is significant in that it deals with the problem of whether to impose taxes on profits made from profitable corporations, along with discussions on Inheritance Tax and Gift Tax Act amended in December 2003 when comprehensive taxation was introduced, amendments in January 2013 and August 2013, from the perspective that taxpayers should not be overburdened with administrative procedure and tax amount under comprehensive taxation. Concerning the application of comprehensive taxation; recently, lower court cases have aroused controversies about whether taxes should be imposed on profits made from profitable corporations. Thus, there is the need to prevent the avoidance of tax and the overextension of comprehensive taxation. Accordingly, Article 41 of the Inheritance Tax and Gift Tax Act is judged to be problematic. The Article, intended for corporations in deficit, is applied to profitable corporations that may also be subject to corporate tax, dividend income tax and transfer income tax, which makes it difficult for taxpayers to predict. On the other hand, it may be advisable to apply correspondingly to Article 42 (1) subparagraph 3 to profits found to be made from changes in ownership shares (or the amount) of a profitable corporation. This is because it needs to be respectful of the juridical intent regarding the system, and at the same time, to impose taxes on the gratuitous transfer of wealth in accordance with Article 42 of Inheritance Tax and Gift Tax Act.