「상속세 및 증여세법」 제45조의 5의 문제점 및 개선방안

Before it was revised, Section 41 of the Estate and Gift Tax Law provided the taxation of benefits earned indirectly by shareholders of a corporation when related parties make a donation to the corporation, while delegating authority to calculate the amount of earned benefits to the President. However, the revised law provides itself earned benefits in Section 45-5, which is a legal presumption. This article reviews the validity of Section 45-5 mainly from a Constitutional standpoint and suggests a legislative proposal and interpretative guidance. The problem with Section 45-5 is that taxpayers may be taxed even if they get no benefits from a transaction. Generally, the gift tax taxes the free transfer of property. Thus, to tax a donation requires the existence of profits from such a transaction. If a provision requires taxing taxpayers who have no donative benefits, such a provision must meet Constitutional conditions to justify the taxation. However, after reviewing and analyzing Constitutional principles, this article concludes that Section 45-5 is not justified to tax a donee who has received no donative benefits. Based on the foregoing findings, this article suggests the following solutions: (i) change the section into providing merely assumed benefits, which is not legal presumption and improve the method of calculating the amount of earned benefits from a donation; (ii) narrowly interpret and apply the section only when transactions are carried out primarily for tax avoidance or tax evasion purpose; (iii) revise the stock evaluation method to reflect future earning power of a corporation; (iv) provide a provision to recalculate the amount paid for non-realized income; and (v) provide a provision to evaluate stock price of a corporation that has carryover losses.