증여세 완전포괄주의의 현상(現狀)과 전망 -대법원 2015. 10. 15. 선고 2013두13266 판결을 중심으로 -

Fifteen years have passed since the full comprehensive taxation of a gift tax was implemented. At the beginning of the implementation, the National Tax Service refrained from taxing transactions or actions not specified in the individual regulations under the Inheritance and Gift Tax Act. However, over time, if any act or transaction falls under the concept of gift, even if it is not specified in individual regulations, gift tax has begun to be imposed. And as a result, many disputes between taxpayers and taxpayers arose. In practice, the most controversial case is whether a gift tax can be levied on the increased value of shares due to donations to profitable corporations. Supreme Court 2013du13266 decision decided on October 15, 2015 ruled that transactions or actions not stipulated in the individual regulations cannot be taxed only by the definition of the concept of a gift, and it is a monumental ruling specifying the limits of the full comprehensive taxation of a gift tax. It is very questionable whether there are cases in which the scope and limit of taxation of a gift tax cannot be regarded as one of the individual regulations, so the above ruling was a fatal blow to the application of the full comprehensive taxation of a gift tax, and the view of the Supreme Court continues after that. The above judgment is contrary to the legislative intention of the full comprehensive taxation of a gift tax, and the logical structure leading to the conclusion is not sufficient. However, I agree with the conclusion in that it conforms to the constitutional ideology and principles of the tax law, and has brought the result of guaranteeing the legal stability and predictability of taxpayers by stopping the arbitrary exercise of the taxation right under the guise of the full comprehensive taxation of a gift tax. In the end, I think that the basis of the controversy surrounding the comprehensive taxation of a gift tax under the Inheritance and Gift Tax Act lies in the difference between the legal stability and predictability of taxpayers and the exercise of the taxation right for the realization of the tax justice. While it is desirable for freedom and equality as constituents of justice to be harmonized, from the perspective of me who has the idea that freedom should precede in the event of a conflict between the two, I think it was unreasonable for the government to introduce the full comprehensive taxation legislation in 2004 because it fundamentally threatens the legal stability and predictability of taxpayers, and should have stayed in the previous type of comprehensive taxation of a gift tax. Even after the Supreme Court 2013du13266 decision sentenced on October 15, 2015, we do not expect the controversy over the full comprehensive taxation of a gift tax to cease. However, in respect of the purpose of the above ruling, the taxation authority should not rely too much on the comprehensive definition provisions of the concept of gift, but instead should show an understatement of taxation after supplementing the individual provisions. Taxes are not a panacea for achieving economic justice, as laws are not all-around. Taking advantage of the above ruling, the exercise of the right to taxation based on the full comprehensive taxation of a gift tax in the future should be restrained from exercising unless supported by individual regulations.