증여세 완전포괄주의와 흑자 영리법인을 이용한 간접 증여

In order to transfer economic value to the offsprings or another generation, a transferor or donor may make an indirect gift by transferring the asset to a corporation held by the (intended) transferee, instead of making a direct gift to the transferee or donee. Gift taxation on the donee in such indirect gifts is a controversial pending issue in Korea. Over the recent years, the National Tax Service initiated taxation on this indirect gift in a number of cases, but the courts at the first instance and appellate level tend to deny taxability so far. As a result, the Estate and Gift Tax Act was amended last year to specifically prescribe taxation on indirect gift via a corporation. This paper examines whether gift taxation on indirect gifts via corporation is justified under then effective law, taking into account that since 2003, Korean gift tax system has been changed fundamentally to adopt the concept of “comprehensive gift taxation.” The paper argues that indirect gift in issue is taxable under plain language of the Act and the concept of the comprehensive gift taxation, despite the absence of a specific article for calculating the amount of gift. It also accords with the Korean Supreme court’s interpretation that article 2(3) of the Act is sufficient ground for imposing gift tax. If it is impossible to calculate the amount of gift, tax imposition would be improper, but the calculation does not raise any further difficulty simply because the gift is via a corporation. The article then analyzes tax burden of the indirect gift under the current rule and proposes some further legislative amendments to the 2014 revisions. Current rule does not fully eliminate double tax burden imposed by corporate income tax and as a result indirect gift via a corporation bears higher tax burden than direct gift to the shareholder. As a solution, the corporate tax on the gifts must be imputed to the shareholders and be credited from the gift tax on the shareholders. While this article was being reviewed for publication by journal editors, the Korean Supreme court published its first decision on indirect transfer of wealth via for-profit corporation, rescinding gift taxation on such a case. Its reasoning was that the legislative intent of art. 41 before the 2014 amendment should mean to as specifically exclude indirect transfer via profitable companies from gift taxation. However, the Supreme court’s interpretation that art. 41 covers all corporations is hard to accept. Art. 41 only covers corporations with loss or in dormancy. Indirect transfer via profitable companies is outside the scope of art. 41, and thus is a taxable gift covered by art. 2.3.