완전포괄주의하에서의 흑자법인을 통한 변칙증여에 관한 연구

Abstract

A Study on the Irregularity Gift by Profitable Corporation under the All-Inclusive Principle

Ha, Bok Su

Department of Tax Administration Graduate School of Business Administration Pukyung National University

Abstact

Gift tax has been ineffective in blocking the gratuitous transfer of wealth for the following two reasons. First, if a donor and a donee have the identity of interests, it is easy for them to conceal the gift itself. Second, we have adopted the enumerating taxation method in which gift tax can be imposed only when the taxation conditions of deemed gift and the calculation method of distributed property have been enumerated in the inheritance and gift tax laws. To solve these problems, the conditional all-inclusive principle, which is a more advanced form compared with the simple enumeration method, was introduced in January, 1999. Under this principle, gift tax could be levied in case a transaction was similar to the ones enumerated in the law and ordinance and was made through a third party. In January, 2001, it was transformed to the all-inclusive principle by type. Under the principle, six types of capital transactions in which anomalous transactions had taken place frequently had to be specified in the inheritance and gift tax laws and gift tax could be levied if cases were similar to the six specified capital transactions. It was true that the scope of assessment over deemed gifts was greatly expanded, but the gratuitous transfer of wealth could not be deterred completely, given that most cases of anomalous inheritance and gift occurred through capital transactions. Furthermore, the appearance of various financial commodities and the development of information communication have increased the possibility of new types of transactions. Therefore, the complete all-inclusive principle (CAIP, hereafter) has come into effect since January 1, 2004 in order to prevent various means of anomalous heredity of wealth. The objective of this study is to identify problems and demonstrate some reform measures for the problems when gift taxes are levied especially on irregularity gift by profitable corporation under the all-inclusive principle. The primary results of the study show following three areas of the problems and three reform measures for the problems, respectively. Firstly, the realized time for the gift tax under CAIP is the time "when the value of properties is acquired." But the acquisition time of property is not always the same as the time when the value of the property is increased. In order to improve this problem, the gift tax law should have to clarify the time when the property being gifted is increased. Secondly, the CAIP rule in the gift tax may be unconstitutional because the interpretation of tax law will be based on tax authority's own will due to the all-inclusive and abstract characteristics of the gift tax rule under the CAIP. In order to improve this problem, the gift tax law should delegate detailed taxation condition to enforcement ordinance and/or detailed enforcement regulation of the gift tax. Thirdly, when stocks of a corporation are gifted to third party shareholders, the resulting tax may be levied on both gift tax and corporation tax (or comprehensive income tax). This results in double taxation problems. In order to prevent these double taxation problems, the tax authority levies gift tax first when the value of the property is increased, and then levy capital gain tax by deducting prepaid gift tax after the transferring transaction have been completed.