2019년 「상속세 및 증여세법」 판례회고

This report deals with notable decisions that were ruled by the Supreme Court concerning Inheritance Tax and Gift Tax Act in 2019. Among the precedents publicized at the Comprehensive Legal Information Service, the total of 6 decisions are sorted out, all of which are of particular interest in terms of them pertaining to Gift Tax only. It was ruled by Supreme Court that new Gift Tax is not taxable both on the new merger stock granted by merging in place of old merger stock in 2016DU30644 decision on January 31, 2019, and on the new convertible stock acquired by exercising the convertible right of convertible bond in 2016DU1165 decision on September 10, 2019. It is acceptable that considering a unconstitutional issue, the Supreme Court have the purport to minimize the range of ‘deeming property registered in name of another person to have been donated’ and the attitude to extend the effect as the basis in 2011DU10232 decision. However, it can be criticized that this decision went beyond the limit on interpreting the law phrases. The decision 2016DU50792 by the Supreme Court on June 13, 2019, took a stance of ‘summing-up affirmative’ on the matter that it can also be applied for the case of ‘deeming property registered in name of another person to have been donated’ on the basis of newly established ‘donated property excluding any summing-up’ regulation as old Inheritance Tax and Gift Tax Act was revised in 2003. I agree with the conclusion of the decision in terms of the need for a strict interpretation of the legal wording at the time of application. Additionally, the Supreme Court's ruling in 2017DU49560 on May 30, 2019 and 2017DU57899 on April 11, 2019, clarified the meaning of ‘underwriter' in the old Capital Market Acts. It had been controversial in practice as a requirement of applying the article 40 of the old Inheritance Tax and Gift Tax Act. The very ruling decided the case of some stocks acquired simply in purpose of investment did not constitute ‘underwriter’, so thereby Gift Tax cannot be taxable for the largest shareholder who acquired stocks at stock-issuing corporation. Considering the difficulty of viewing acquisitions for simple investment purposes as acquisitions under the old Capital Markets Act, I agree with the conclusions. Finally, The Supreme Court in 2017DU68417 on July 11, 2019 ruled that a declaration of Gift Tax, which deceived the donator and subsequently hid actual nominal trust, was not subject to penalty taxes on non-filing just because there was a declaration anyway. The decision is significant as it is the first ruling that clearly outlines the controversial part, and I agree with the conclusion.