초과배당에 따른 이익의 증여에 관한 연구

In the commercial law, difference dividend is not allowed due to strict stockholders’ equality principle, accordingly, difference dividend conducted in the KOSPI and KOSDAQ listed companies or unlisted companies a mere dividend form, offered by the company formally, not the difference dividend defined by the commercial law, and the actuality is a civil assignment, given to minority shareholders as the major shareholders give up the whole or some of right for concrete profit assignment, a right to dividend after resolution of dividend at the general meeting of shareholders. In the current Income Tax Law and Inheritance and Gift Tax Law, the major shareholders are not assigned with the tax along with dividend, who give up dividend, also, the shareholders in a special relationship with the major shareholders with the excess dividend are assigned with income tax, and gift tax is not separately assigned. To see the aspect of abandonment or transfer of the whole or some of confirmed right for concrete profit assignment according to dividend resolution at the general meeting of shareholder, nevertheless the right for concrete profit dividend has the equal legal effect just like receipt of dividend, though the actual dividend is a realized profit, not received, according to current tax system, it has a problem against tax equality principle due to difference in tax burden compared to transfer of property after taxation of capital gain, since the capital gain of the major shareholders could not permanently taxed. Therefore, in case of untrue difference dividend, to assign the dividend abandoned by the major shareholders to the shareholders excessively through difference dividend, in a special relationship, in order to evade tax, it does not correspond to the policy aspect, nor to tax equality principle, accordingly, it is desirable to assign income tax to the major shareholders who abandon dividend on the excessive dividend assigned to the shareholders in a special relationship with the major shareholders and assign gift tax to the shareholders in a special relationship with the major shareholders, according to the policy aspect, profit transfer taxation, and tax equality principle. Therefore, it is necessary to change the transfer date determined by current inheritance and gift tax law article 41(2) paragraph 1 to “the date decided at the general meeting of shareholders”, paragraph 2 and 3 should be deleted, also, a relevant paragraph 4 “Calculation method of income amount”, should also be deleted and revised, which is unnecessary, to correspond to taxation system.