증여세 완전포괄주의와 본래의미의 증여세 포괄주의

Since the introduction of the full comprehensive gift taxation in 2004, the Supreme Court 2013dul13266 decision announced on October 15, 2015 has played a monumental role in giving criterion of the limits of the taxation. The decision ruled transactions, not satisfying the conditions of the section stipulating one of the categories of gift taxation but satisfying the definition of “ gift” , are not subject to gift tax if the section is interpreted to limit the scope of the very gift category. However, regardless of the interpretation (whether a certain section has limited the scope of a gift category), gift taxation satisfying only the definition of “ gift” is said to be avoided in order to guarantee the legal stability and predictability of taxpayers. The current full comprehensive gift tax statutes includes gift categories falling not only under the original meaning of comprehensive gift taxation but also outside of the original meaning. This paper proposes the following： Transactions, not satisfying the conditions of the section stipulating one of the categories of gift taxation but satisfying the definition of “ gift” , (1) are subject to gift tax where the section is interpreted not to limit the scope of the very gift category if the category falls under the original meaning, and (2) are not subject to gift tax regardless of the interpretation if the category falls outside of the original meaning. Coincidentally, Korean courts seem to have already agreed on the above proposal. Further, the current full comprehensive gift tax statutes should be amended to separate the categories falling outside of the original meaning from the current combined categories. The Korean Estate and Gift Tax Act Section 41① ⅱ (taxing profits derived from converting convertible bonds into stocks) should be categorized into “deemed gift” because those profits are supposed to impose income tax instead of gift tax. The Section 41-3 & 41-5 (taxing profits derived from IPO) and the section 42-3 (taxing profits derived from appreciation after acquisition) should be categorized into valuation because the essence of those sections is to revalue the price of the initial acquisition. In the long term, for the seamless realization of the comprehensive gift taxation, sections stipulating categories of gift taxation should be moved to regulations. Also, valuation method should be transferred from the current concrete itemized method to the abstract method like that of the U.S. fair market value.