「상속세 및 증여세법」 제40조 제1항의 해석론에 관한 몇 가지 쟁점

In this article, among the issues related to the comprehensive gift taxation, the interpretive issues of Article 40, paragraph 1, subparagraph 1, 2 of the previous Inheritance and Gift Tax act of Korea(herein after “IGTK”) was contemplated. First, in the case of convertible bonds etc. being transferred from an issuing corporation through an underwriter to a special related person of an issuing corporation in connection with the interpretation of Article 40, paragraph 1, item na of the IGTK, the criteria for the determining the scope of the underwriter are now contested at the stage of lower courts. The underwriter has the position of a substantive agent (or indirect agent) as a person who handles the issuing business of securities instead as an insurance that functionally accepts risks when issuing securities. As described above, since the underwriter can not be regarded as having the same economic interest as the general trading parties, the above provision reflects its specialty. Therefore, the underwriter under the above provision is reasonably interpreted broadly to include those who act as underwriters from a functional point of view. Secondly, the possibility of reorganizing the transaction by applying Article 14, Paragraph 3 of the Basic Tax Law to the transaction involving the underwriter in relation to Article 40, Paragraph 1, Item na of IGTK is contested in the lower courts. Paragraph 3 of Article 14 of the National Taxation Basic Law has room for business purposes other than for tax avoidance to be permitted in transactions involving underwriters. It can be doubted whether the above provision can be applied to such a situations. Also in this case, the tax avoidance objective is judged based on objective facts, but as long as the business purpose is not overwhelming the purpose of tax avoidance so that the substance over form doctrine has retain its meaning. Third, the scope of application of income tax priority principle can become a problem in connection with the interpretation of Article 40, paragraph 1, item 2, na of the IGTK. I think that the principle of income tax priority is to be applied only to the situation when the same income is subject to income tax and gift tax. Therefore, the principle of priority of income tax on the interpretation of the above provision which stipulates that gift tax is imposed on capital gains at the stage before income tax is imposed can not be applied.