명의신탁과 증여세 과세표준 신고의무 - 부과제척기간과 가산세 문제를 중심으로 -

Since the introduction of the provision on treatment of title trust as a deemed gift, there has been a constant debate about the fundamental problems of the provision. However, leaving aside the fundamental problems of the provision or proposals for improvement, this paper will address the statute of limitations for assessment and penalty applicable to gift tax on a title trust. The starting point of the discussion is whether parties to a title trust are subject to an obligation to report gift tax base. If such reporting obligation is recognized, a failure to comply with the obligation will result in application of the 15-year statute of limitations for assessment of gift tax on title trust as well as assessment of non-reporting and under-payment penalties. If such reporting obligation is not recognized, the title trust will not be subject to penalties or application of the 15-year statute of limitations for assessment, both of which are based on non-reporting. The practices of the tax authorities and the courts to date have accepted as a matter of course that the parties to a title trust have an obligation to report gift tax base. However, gift tax on title trust, by nature, is an administrative punishment. If parties subject to an administrative punishment are required to report themselves as being subject to the administrative punishment, such requirement runs counter to the essence of punishment as a sanction. In addition, if the parties to a title trust are required to report gift tax base based on the premise that they have a tax avoidance purpose, such requirement in fact compels them to provide the tax authority with the opportunity to find a crime, resulting in a situation where their constitutional right to remain silent is infringed. Compared to the administrative fine imposed on a title trust of real property, which is essentially the same as the gift tax imposed on a title trust in that both are sanctions, a person subject to such fine has no reporting obligation, and therefore, there is no additional sanction imposed for the failure to comply with the reporting obligation. Thus, equity with such administrative fine should also be considered to a certain extent. In light of the foregoing circumstances, interpretation of the current provision on title trust under the Inheritance Tax and Gift Tax Act, which appears to impose an obligation to report gift tax base on the parties to a title trust, should be limited to a teleological interpretation, and such interpretation can lead to the conclusion that the parties to a title trust are excluded from the scope of persons subject to the obligation to report gift tax base. Accordingly, so long as the parties to a title trust are not subject to the obligation to report gift tax base, it should be considered that they are not subject to the disadvantages for failure to comply with the reporting obligation, specifically, application of the 15-year statute of limitations for assessment and non-reporting and under-payment penalties. The practices of the tax authorities and the courts to the contrary should be reconsidered.