상속세 및 증여세 관련 판례의 동향과 전망

This study is to address several issues regarding the inheritance tax and the gift tax, especially the comprehensive taxation on the gift tax, the fictitious donation of shares registered under the name of a third party and the valuation of unlisted stocks. In this regard, this study reviewed two precedents per issue and predicated what precedents would be established concerning such issues. For the comprehensive taxation on the gift tax, the first case is about one of major shareholders who arbitrarily exercised the preemption claim that was granted jointly to them. The Supreme Court adjudicated that case to be subject to a gift tax (Adjudication No. 2008-Du17882, April 28th 2011). The other case is about the shareholders of a corporation operating in the black. The Supreme Court did not deem this case to be subject to the gift tax (Adjudication No. 2013-Du13266, October 15th 2015). The logical structures of those adjudications generally show that the concept of donation (Clause 3 of Article of the previous donation tax law, Item 6 of Article 2 of the present donation tax law) can be extensively defined. Realistically, however, gift taxes may not be charged on some specific transactions out of ones specified in illustrative regulations on the donations of regular transactions (6 types), of capital transactions (8 types) and of profits (3 types). In principle, restrictions are imposed on the transactions specified in the illustrative regulations, but some of them may be subject to gift taxes on condition that the scope of taxation is restrictively delimited. In such cases, they are considered to be gift taxes and their ranges and limits are considered to be determined. Thus, the gift tax may not be charged on them though they correspond to the concept of donation. The interpretation distributes over whether the respective regulations determine the ranges and limits of gift taxes are expected to be settled through precedents. For the fictitious donation of shares registered under the name of a third party, one case is about the fictitious donation of bonus stocks divided by the capitalization of an earned surplus. The Supreme Court did not deem this case to be subject to a gift tax (Adjudication No. 2009-Du21352, July 14th 2011). The other case is about the avoidance of a tax. The Supreme Court reversed the original verdict (Adjudication No. 2011-Du181, September 26th, 2013). After the former adjudication, the Ministry of Strategy and Finance changed a regulation reflecting it. It is an example that shares other than entrusted shares are regarded as the fictitious donation. Lower courts reached different verdicts concerning how Item 1 of Article 41-2 (revised on December 18th 2002) of the previous donation tax law would be applied to a case that an heir, who inherited shares that the ancestor registered under the name of a third party, did not transfer the title to them. There have been attempts at the extensive revision of regulations against the fictitious donation, except in cases where there are definite provisions related to the change of the first truster and trustee, but at the same time the Supreme Court has maintained the balance by presenting interpretations. By the same token, the Court denied the application. In the case of inheritance, in particular, it is necessary to consider the difficulty of meeting requirements for a title trust agreement, except for title transfer. The second adjudication shows the difficult of factual judgment on the avoidance of a tax. In this context, there has been an accumulation of data on precedents that acknowledged that the accused had no intention of avoiding the tax. Since the avoidance of a tax brings a slight reduction in the tax, legal battles can occur against the concrete meaning of ‘slight’, the total period when the tax will be avoided in the future and the problem of whether to impose a levy on the avoided tax. The last issue is about the valuation of unlisted stocks. The Supreme Court did not allow the premium rate to be applied to the shares of the greatest shareholder in valuating the market value of unlisted stocks (Adjudication No.2005-Du7228, December 7th 2006). Also, the net asset value was only allowed as the method of valuation on the stocks of an unlisted corporation that has not yet spent 3 years of business (Adjudication No. 2010-Du26988, April 26th 2012). After the former adjudication, the related law was so amended that the premium rate could be legalized contrary to expectations. The latter was handed down after the related law was so amended that the net asset value could be only allowed as the method of valuation on the stocks of unlisted corporations that have not yet spent 3 years of business, but the important thing is that the same decision was made under even the previous law. Considering there have been amendments to the methods of valuation on unlisted stocks, the adjudication of the Supreme Court shows that there are many controversies over the application of previous legislations and the interpretation of them. As long as an agreement is not reached between taxpayers and tax authorities on the valuation of unlisted stocks that are or will be subject to taxation and a credible valuation method are not come up with in the market, legal battles will continue for the valuation of unlisted stocks under the current law.