차명계좌를 이용한 비상장주식의 장외거래 시 명의신탁 증여의제 적용에 대한 소고

In Korea a gift tax is levied on borrowed stocks according to “Inheritance Tax and Gift Tax Law” Article 45, Paragraph 2. Nominal trust deemed gift regulations refer to regulating borrowed properties by means of tax. The regulation has been legalized up until now by way of changes in detailed application requirements including the location of articles and the asset which is the object of application since the Inheritance Law was amended on December 21, 1974. This study addresses special issues that have caused disputes in the field concerning various regulations of stock nominal trust donation that has emerged when stock acquisition and borrowed account have come together The current study is significant in that it comes up with the methodology of interpreting new issues based on an analysis of previous judicial precedents and new issues based on such analysis at a time when an interpretation of the law is not available as yet in the case of unlisted stocks while judicial decision is now available concerning the issue of listed stocks. The study is based on literature research including dissertations published in previous academic journals, dissertations for academic degrees, precedents by the Supreme Court and Constitutional Court and so forth. The study analyzes the judicial decision Supreme Court 2017.2.21, Announcement 2011DU10232, where it was at issue whether deemed donation applies to each of the stocks where the title was transferred after transfer of the title for the first time in case the title was transferred several times regarding listed stocks acquired while investing in stocks using securities account in the children’s name, and draws the conclusion with regard to whether regulations on nominal trust deemed donation are to apply. In case the actual owner has gone so far as to transfer the title of listed stocks he or she came to own while investing in stocks using borrowed securities accounts to a person other than the actual owner, the conclusion that the judicial decision of the Supreme Court 2017. 2. 21. Announcement 2011DU10232 drew that has limitedly applied the Regulation of name trust donation is valid. However, the conclusion leaves something to be desired in that the ground for the agreement on the nominal trust between the actual owner and the nominee has not been evidently presented. In case of a non-listed stock, where transactions are gradually being market-oriented, actually in the case of transactions via K-OTC, chances are that problems associated with nominal trust equal to listed stocks will arise. In the case of transactions according to securities account of unlisted stocks, whether nominal trust deemed donation applies would not differ from the case of listed stocks. Though the handling of listed and unlisted stocks in terms of tax laws shows itself in transfer income tax and so forth, denial of the stock acquired after the stocks initially acquired on the ground of failing to meet the requirement for consensus does not need to be differentiated between listed and unlisted stocks. Ultimately, when a securities account is opened and unlisted stock transactions are made, and in case the sale price of the stock initially acquired is entered in the borrowed securities account, and other unlisted stocks were acquired with the sale price, as to whether nominal trust donation regulations apply to unlisted stocks other than unlisted stocks initially acquired, “the application negation theory” is appropriate. A judicial precedent would have to be set concerning unlisted stocks based on the needs for restricted interpretation of the conclusion and requirements for consensus of Supreme Court 2017. 2. 21. Announcement 2011DU10232 judicial decision in the days to come.