2017년 「상속세 및 증여세법」 판례회고

In the year of 2017, total of 23 judgments were confirmed by Comprehensive Legal Information Service as the rulings by the Supreme Court concerning Inheritance Tax and Gift Tax Act and among them, 18 judgments including the 2 en banc judgments were judgments that was publicized in Supreme Court precedent publication. This article will analyze 10 cases of the Supreme Court cases related to the 2017 Inheritance Tax and Gift Tax Act by theme and review with the subject analysis concerning the 1 meaningful case concerning the ‘Deeming Property Registered in Name of Another Person to Have Been Donated’ Provisions. Beforehand, concerning the ‘Deeming Property Registered in Name of Another Person to Have Been Donated’ Provisions, firstly, I agree on the decision by 2017Hun-Ba130, whether this provision breaches the Constitution, on the result aspect of the present taxation system and historical flow but would state that criticism on the essential function of taxation and review on systematic alternative are needed rather than the future inertial decision. Secondly, among the judgments concerning the application scope of ‘Deeming Property Registered in Name of Another Person to Have Been Donated’ Provisions, the 2014DU43653 decision is proper result of not applying in case the stocks were inherited by the death of title trustee after title was transferred in the name of title trustee considering the legislation purpose and background of the ‘Deeming Property Registered in Name of Another Person to Have Been Donated’ Provisions. Judgment 2011DU10232 is believed to be proper judgment showing limited interpretation on the application target by applying and taxing the ‘Deeming Property Registered in Name of Another Person to Have Been Donated’ Provisions limited to cases where purpose of tax avoidance is recognized apart from the previous title trust, in case of disposing title trust stocks and buying the stocks again under the same name with the money from the disposed stock. Thirdly, I agree on the result of 2015DU50290 judgment concerning joint taxation obligation scope of the title trustee on the aspect that it is not possible to alternate the taxation obligation with the other taxation obligation by each step. Fourthly, it is difficult to agree on the judgment 2017DU32395 concerning the time of acquisition of donated property which is the case judging where there is transfer of the title by circumstantial statement on a change of shares, etc. As it is the initial judgment on the time of acquisition of donated property which was not clearly registered legislatively but the result is not only different in the existing practices and the position of the court but also there is no rational basis to deem the regulation that was suggested as judgment basis as the time of acquisition of donated property provisions. Nextly, concerning the non-inclusion in taxation value of property contributed to public interest corporation, etc., firstly, en banc judgment 2011DU21447 concerning non-inclusion of taxation value of gift tax when donating stock of public interest corporation has an important meaning as the first judgment that provides the criteria and operation method to check on the abuse of expedient system as well as encouraging donation in good faith to public interest corporation in the area where there has been practical confusion by too much complicated and unclear tax regulations in the past. Secondly, the 2015DU50696 judgment result of judging the calculation period of additional amount of gift to be ‘3 year past period’ in case the donated property of public interest corporation has not directly used to the public purpose business is reasonable and apart from this evaluation, the stipulation on time of acquisition of donated property is needed legislatively. Nextly, judgment 2015DU45700 concerning the comprehensive taxation and principle of taxation by rule of law has determined that gift tax may not be taxed in principle if the person liable for tax payment has not received any benefits from the gift which was the judgment confirming again that the principle of no taxation without law is the standard of normative control not allowing extending or inferring the legal contents or regulating matters concerning tax requisitions with administration legislation without mandating by laws. Lastly, concerning the gift taxation by economic substance, firstly the judgment 2015DU3270 on whether the gift taxation is possible by applying Article 2.4 from the old Inheritance Tax and Gift Tax on profit made by exercising the convertible right of convertible bond showed the limit of applying the taxation principle by economic substance. Secondly, the 2015DU46963 case was the first case that affirmed the application of the Article 2.4 from the old Inheritance Tax and Gift Tax on whether cross gift by applying the substance over form doctrine to reconstituting the direct gift is possible. This also has meaning in the point suggesting some conditions in the application in somewhat abstract and ambiguous concept in the taxation by ‘economic substance’.