주식의 포괄적 교환에 따른 이익 이전과 증여재산가액 계산 ― 대법원 2022. 12. 29. 선고 2019두19 판결의 평석과 정책적･실무적 의미 ―

In its recent decision (2019du19, December 29, 2022), the Supreme Court of Korea (the “SCK”) ruled that Article 28 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act regarding a merger should apply mutatis mutandis to the calculation of profit transfer resulting from a comprehensive exchange of shares. The author analyzed the significance of this ruling in three aspects. First, the SCK officially adopted the economic substance principle under the comprehensive taxation system. Second, the SCK acknowledged the similarity between a merger and a comprehensive exchange of shares. Third, the SCK placed a priority on the legal intent of the comprehensive taxation system in reaching such conclusion. The policy and practice implications of this ruling may be summarized as follows. First, the articles regarding a comprehensive exchange of shares should be revised to reflect the ruling. Second, the SCK should provide specific legal grounds regarding how to interpret rules regarding the comprehensive taxation system in its adjudications. Third, the courts should establish concrete criteria of the comprehensive taxation system by taking into account various characteristics of each case.