동일인 명의로 반복된 명의신탁의 증여세 과세에 관한 연구

There has been a lot of practical controversy regarding the deemed gift taxation of reacquisitions as a separate matter from the initial name trust in situations where name trust shares are sold and new shares acquired under the same name on a repetitive basis, where new shares are acquired by a comprehensive exchange of mergers or shares are acquired again in the name of the former trustee, or where new shares issued by way of capital increase are under the name of the original trustee. The Supreme Court recently issued decisions holding that such reacquisitions are not subject to deemed gift taxation. These Supreme Court decisions are welcome in the sense of protecting taxpayers, but the Supreme Court has overlooked the interpretation of tax laws based on the principle of no taxation without law. In this regard, I have examined whether the interpretations issued in a series of Supreme Court decisions including the decision at issue conform to Article 45-2 of the Inheritance and Gift Tax Act. This paper examines the major requirements of the deemed gift issue involving name trusts as prescribed in Article 45-2 of the Inheritance and Gift Tax Act. The main requirements for the application of the deemed gift involving name trusts are the consent to establish a name trust and tax avoidance purpose. Therefore, whether or not name trusts are subject to deemed gift taxation should be determined by reviewing and judging whether it meets the above two requirements. In connection with these major requirements, the Supreme Court decisions and issues are reviewed in respect to cases involving name trusts in the name of the same trustee, such as the repeated share transfers in the name of the same trustee, capital increases with issuance of new shares and capital increases without consideration, comprehensive exchange of stock, and merger as in the case of the decision at issue. Based on the review, it has been confirmed that the Supreme Court held, in most cases, that there is no deemed gift tax issue without making any determination as to whether or not there was consent to establish the trust as a name trust or whether there is tax avoidance purpose, which are the main requirements of deemed gifts. With respect to the case at issue, the court ruled that the new shares acquired from merger under the same name in the name of the trustee was a new trust but concluded that the gift would not be subject to tax for reasons unrelated to tax avoidance purpose. The issue in the case is whether the merged new shares acquired in the name of the same trustee is subject to deemed gift taxation and as such, the court should have considered whether such acquisition of new shares from merger are subject to taxation based on consent to establish a name trust and tax avoidance purpose. The case at issue should have determined whether the name trust of new shares from merger is subject to deemed gift taxation based on a determination of whether there was continued tax avoidance to the previous name trust or addition of new tax avoidance as a result of the name trust of new shares from merger. The protection of taxpayers or the exercise of legitimate taxation rights by the taxing authorities should occur within the framework of the principle of no taxation without law as prescribed by the Constitution. Although the tax office should limit the abuse of taxation rights by analogy or broad interpretation of the tax law, the courts should be prevented from denying taxation based on grounds without legal basis while ignoring clear language of the tax law. Such decisions by the court without any legal basis may be beneficial to the taxpayers in some cases, but leaves the taxpayer in a position that is unstable as the decision is not based on the law and there is room for different judgments to be issued depending on the court and is ultimately undesirable in terms of protecting the predictability and legal stability of taxpayers. The deemed gift of name trusts under Article 45-2 of the Inheritance and Gift Tax Act is not in line with the essence of tax and should be abolished promptly. However, for the duration in which the system remains in place, legislation should be introduced to improve the issues. As one such improvement measure, we may consider introducing legislation to set the tax amount on gift tax for repeated deemed gifts on name trusts at the actual amount of taxes avoided or several times the actual amount of tax avoided in consideration of the nature of deemed gift as an administrative sanction.