완전포괄주의에 따른 증여세제 문제점 연구- 명의신탁 증여의제를 중심으로 -

This study is to review the problems of the gift tax act system according to the complete negative system focused on the constructive gift for normal trust. This thesis is to compare the current regulation on constructive gift for normal trust with comprehensive taxation on gift tax and recent legislation related to it (presumption of donation from borrowed-name bank accounts and law revision on real name financial transaction, etc) and to present improvement plans through shedding new light on them. Problems in the regulation on constructive gift for normal trust related to comprehensive taxation on gift tax are summarized as follows. First, the regulation on constructive gift for normal trust does not agree with the concept of comprehensive bestowal based on comprehensive taxation but it comes into conflict. It is because the intent of the regulation is to control the registration under a third party's name by using gift tax, not because registration under a third party's name is bestowal and gift tax is consequentially imposed. Second, unlike deemed donation subject to so-called tunneling on which legislation of comprehensive taxation on gift tax is supplemented, the regulation on deemed donation in registration under a third party's name can hardly be defined as deemed donation in that the substantiality of transaction is not bestowal. In case of tunneling, different from registration under a third party's name, the economic substantiality is bestowal but not realized profits, which is, therefore, deemed as bestowal. Third, the regulation on constructive gift for normal trust is regarded as redundant and excessive in light of newly established presumption of donation from borrowed-name bank accounts and law revision on real name financial transaction. A representative case of listed stocks under a borrowed name is subject to both regulations on presumption of donation from borrowed-name bank accounts and on constructive gift for normal trust. Improvement plans this study suggests are as follows. In the short run, legislation should be made to conform with the principle of substantial taxation by changing a taxpayer into a bestowment subject to normal trust and making a fiduciary as a secondary taxpayer or one who is jointly and severally liable for tax payment. In the long run, the regulation on constructive gift for normal trust should be separated from the system of inheritance tax and gift tax law and then stipulated as special provision of Tax Reduction and Exemption Control Act but it should be altered as a system to impose the administrative punishment in accordance with examples of imposing gift tax, not with the gift tax itself.