일감 몰아주기 거래의 과세에 대한 비판적 소고

Abstract

This paper is focused on the following tax questions on tunneling transactions in Korea. First, is it eligible for the legal concept of ‘Deemed gift’ to a tunneling transaction? Second, is this tax regime designed desirably? Third, this benefit is desirable to be taxed as only income, not a gift. First, the legal concept of ‘Deemed gift’ is necessary for levying gift taxes on tunneling transactions, but it is not unreasonable under the current gift tax system in Korea. ‘Deemed’ means to extend the legal concept of gift artificially. Therefore, it is inconsistent with the logic of gift taxation. Second, it is hard to examine and set up the criteria of the arm’s length ratio to tunneling transactions. Currently, it regulates that the arm’s length ratio is under 30% or 50% between related parties by the enforcement decree of the inheritance and gift tax law in Korea. But it has two problems with this regulated approach. (1) The arm’s length approach considers numerous factors to be comparable with each other. But it is impossible for considering compatability all and setting up the cookie-cutter criteria. (2) it ignores a special character of an individual industry area. For example, this approach deals with IT service and manufacturing business as the same. Third, As a matter of tax law, profits by a tunneling transaction consists of ordinary income and economic benefits to earn the opportunity to perform. This factor is also obscure to regard a tunneling transaction as a gift. In the U. S., if ordinary income and gift factor blend into the total revenue, it would be solved to characterize ordinary income. For reviewing the logic of this resolution, this paper analyzes Bingler case(the U. S. Supreme court decision). In conclusion, we would realize that it never prevents a tunneling transaction with related parties by levying gift taxes. This social problem is included in the matter of the monopoly regulation and fair trade act.