금융재산 관련 증여추정규정의 체계 정립 및 입증에 대한 소고- 「상속세 및 증여세법」 제45조 제4항을 중심으로 -

Since ‘Inheritance Tax and Gift Tax (ITGT) Act’ has been amended on January 1st, 2013, bank accounts may be deemed as acquisitions in case the holders’ real names are authenticated and thus it allows of ‘deemed donation of assets acquisition funds.’ Also in ‘Act on Real Name Financial Transactions and Confidentiality’ to be enacted on November 29th, 2014, a new provision stipulates that financial assets on bank accounts may be deemed to be in the possession of their holders in case the holders’ real names are authenticated. It will enable tax authorities to shift the burden of proof to financial assets, especially bank accounts, and thus raise gift tax with more ease. Considering the nature of tax administration that factors not only in the convenience of tax authorities but in the position of taxpayers, the relevant law needs to be amended that clear criteria can be set regarding possible or impossible cases of presumption of donation. That pertains to the exclusion of deemed donations stipulated in Clause 1 and 3, Article 45 of ‘ITGT Act’ and to Clause 1 and 2, Article 34 of the enforcement decree. It may be interpreted to restrict the power of the tax authorities, but at the same time to guarantee that they will exert their authority. There is the need to decide on whom the burden of proof should be laid between taxpayers and tax authorities, and it is not to give one an advantage over the other or vice versa. In a process of factual judgment on an appeal against a levied tax, a different judgment may be made from what was at first made regarding the legality of taxation, which implies that even just judgments may not bring disputes relevant to gift taxes to an end. Such problems may arise when abstract rules are applied to concrete casus, or it varies depending upon who argue against the problem and how much it is accounted for, notwithstanding it is regulated as deemed in point of law. In Article 28 of ‘Enforcement Standard of ITGT’, formal tax amount is used for a criterion for cases that fall under deemed. It enables taxpayers to estimate tax amount and gives tax authorities that are pressed for personnel and time a more effective way to review cases of gifts. With a new clause of ‘ITGT Act’ (Clause 4 in Article 45), however, it is more likely to overestimate the deemed acquisition of financial assets in the case of deemed donation. Accordingly, it is imperative to formulate exclusion criteria for deemed donation with consideration for financial assets excluding acquired property (housing and others) and debt repayment in order that proper guidelines may be established in terms of tax administration. Compared to the past, more financial information is provided to tax authorities. Thus, it is crucial for tax authorities to distinguish cases of gift tax from deemed donation from inapplicable cases, which can be helpful to prevent excessive burden from being placed on taxpayers involved in lots of financial transactions as well as for tax authorities to figure out cases applicable to gift taxes and levy gift taxes. Though, a further study is needed to set the exact amount of tax.