증여세 완전포괄주의 제도의 실효성에 관한 연구

It is doubtful how the intensified comprehensive taxation on gift tax has contributed to tax justice by preventing the expedient transfer of property as well as there is no clear case of donation taxation in this way. It is primarily caused by our legal environment insisting the principle of no taxation without law for judgment of tax issue. With this critical perspective, this study suggests the improvement of validity of comprehensive taxation on gift tax by critical review of the precedents associated with how this taxation system has operated as its legislative objective. The following is the result of study for validity improvement of comprehensive taxation on gift tax. Firstly, there is a conflict with the principle of no taxation without law. Under newly enacted Article 32 of the Inheritance and Gift Tax Law, there is an issue in contravention of the principle of definitude in taxation requirements in that the requirement beyond individual illustrative regulation is very vague and abstract. Considering the legislative objective of comprehensive taxation on gift tax, it is required to approve the diversity in Article 32 of the Inheritance and Gift Tax Law as does in Article 2, Section 3 of it. The second issue is the supplementation of newly enacted Article 32 of the Inheritance and Gift Tax Law. Considering the preceding precedents, there is still a question whether comprehensive taxation on gift tax would be implemented on the case beyond individual illustrative regulation by application of newly enacted Article 32 of the Inheritance and Gift Tax Law. Thus, It is necessary to establish the ground for applying the accounting regulation to the donation case which is practically same or similar with individual illustrative regulation The third issue is to invoke the objective of the principle of no taxation without law. Comprehensive taxation on gift tax is the presentation of will that it is not to legally protect the expedient giver. However, it arouses the distortion in the intent of the law that the attitude of precedent tends to secure the legal predictability even for the expedient giver, which is the intent of the principle of no taxation without law. Therefore it is righteous that comprehensive taxation on gift tax should be applied in a way to pursue the equality of taxation principle. The fourth issue is the supplementation of legislation. When new types of trade occur to be considered as the subject of gift tax, the type of that trade should be defined and the regulation for taxation requirement and calculation of the donated property needs to be adjusted in the relevant law or its sub regulation. For instance, there is a taxation case of gift tax over the rise of stock value caused by corporate donation of properties including real estate.