상속세 및 증여세법 제2조 제6호와 개별예시규정의 합리적 관계설정을 위한 입법론적 고찰

The confliction between the comprehensive Gift Tax System prescribed by the sixth clause of Article 2 of Inheritance and Gift Tax Law, and Principle of no taxation without law is inevitable. This is because the comprehensive Gift Tax System gives more emphasis on the tax fairness. This study analyzes the desirable relation between the Article 33 to 42－3 of Inheritance and Gift Tax Law and the sixth clause of Article 2, in order to attain goals of comprehensive Gift Tax system and to enhance predictability of tax payers and legal stability and at the same time. Also this study suggests some alternatives on the legislation perspective. First, the third clause of Article 2 of an old law can act as the legal basis of taxation, but it should be corroborated by reasonable accounting regulations and calculations. The individual illustrative regulations that were previously deemed donation should be interpreted as the prefigurative enumeration after the inception of the third clause of Article 2. Second, if the individual illustrative regulations are interpreted as the prefigurative enumeration, the appliance of the third clause of Article 2 on the donation transactions that are not categorized in this group is invalid since the profit calculation from donation is not easy unless the donation occurs in a simplest form; reaching the agreement of all the members of society is another obstacle. The formulation of calculation method is imperative for it allows taxpayers to predict the amount of their tax burden, especially in complex donation transactions since the calculation method consentaneity of each members of society is impossible. To solve these problems, the formulation of calculation regulations and forms of the individual prefigurative regulations should reach a reasonable level. Third, after reviewing the relation between the meaning of Article 31 of Inheritance and Gift Tax Law and the sixth clause of Article 2, it is recommended to improve the predictability of tax payers with prefigurative enumeration by delegating to enforcement ordinance, rather than merely stating the “in cases when economic substance is similar” in the sixth clause of Article 4 or Inheritance and Gift Tax Law. Even though not written in any parts of the individual illustrative regulations, cases that are included in the sixth clause of the Article 2 should first be reviewed with the possibility of applying calculation regulations, then if there is no appropriate regulations to apply, there must be a rule that urges one to follow the most widely and generally accepted calculation method. This solution can effectively improve the predictability of tax payers. Finally, in order to improve the predictability of tax payers while maintaining the individual illustrative regulations, we should avoid fomenting unnecessarily specific requirements of individual prefigurative regulations; instead, the scope of transactions defined in the phases of individual prefigurative regulations should be expanded through the formulation of donating deeds, like the sixth clause of Article 2 broadly expanded the concept of donation.