영리법인을 이용한 간접증여에 대한 증여세 과세방식의 변천과정 및 미국의 과세방식과 비교를 통한 시사점

This paper compares gift taxation between Korea and the U.S. where a donor makes an indirect gift by donating to a corporatiion held by the intended donee. The fundamental difference between Korea and the U.S. is whether the gift to the corporation is taxable income to the corporation. In the U.S., gift cannot be earned and are not thought of as profits of the corporation, hence cannot be taxable income to the corporation, but considered as contributions to the capital. On the contrary, Korea considers the gift as a taxable income to the corporation, and gift tax is also imposed to the shareholder on the increased value of the stock. If gift to a corporation is begun to be regarded as gift to the shareholder constituting contributions to the capital just like the U.S. (thus imposing gift tax to the shareholder instead of imposing corporate tax), the problems arising out of the current Korean gift taxation can be all solved. Since the Inheritance and Gift Tax Act was revised in 2019, double tax burden is fully eliminated because corporate tax is fully creditable against gift tax instead of deductible. However, current rule does not eliminated income tax burden when the corporation distributes the gift to the shareholder. In addition, deeming more than the increased value of the stock as a gift to the donee could be unconstitutional. Consistent treatment is desirable between tangible gift to a corporation and intangible gift by providing work opportunities to a related corporation. Since corporate tax is creditable against gift tax in a simple tangible gift case, same treatment is desirable in an intangible gift case where corporate tax is currently only deductible against gift tax.