흑자의 영리법인과의 거래를 통한 간접적인 이익의 이전에 대한 증여세 과세의 한계

Abstract

This paper is a commentary on Supreme Court Decision 2013Du13266 Decided October 15, 2015. Question Presented in the case is whether a gift tax may be imposed on indirect wealth transfer between parties in special relationship through transactions with a profitable corporation. The Inheritance Tax and Gift Tax Act (the “IGTA”) adopted the so-called “Complete-Comprehensive Taxation System for Gift Tax” (the “CCTS”) by: (a) establishing Article 2(3) imposing tax liability not only on gifts under the Civil Act, but also on gratuitous transfer of property in a direct or indirect manner and increase in property value by donation, consistent with the tax law-specific concept of comprehensive gift; and (b) converting the “positive enumeration of deemed gift regulations” into an “illustrative regulations on calculating the benefit/value of a gift”(the “Illustrative Evaluation Regulations”). The CCTS went into effect on January 1, 2004. Before the introduction of the CCTS, Article 41 of the IGTA imposed gift tax liability only on transfer of wealth through transactions with corporations that has a deficit or under business suspension or closure. It was understood that a gift tax liability was not imposed on a corporate shareholder who indirectly turned a profit through transactions with a profitable corporation, since such shareholder profits would be subject to dividend income tax or capital gains tax at the point of distribution or share transfer. The revision of Article 41 of the IGTA under the CCTS into an illustrative regulations on computing the value of a gift has preserved the contents on tax liability and scope. However, the National Tax Service began to impose gift tax on shareholder profits realized through donations of asset to profitable corporations whose stock price increased, on the ground that such a profit constitutes a gift under Article 2(3) of the IGTA as a profit arising out of an indirect transfer of property. The subject case held: (a) as a matter of principle, gift tax may be imposed on any action or transaction inasmuch as it constitutes the concept of gift under Article 2(3) of the IGTA; however, (b) gift tax liability under Article 2(3) of the IGTA shall be limited in cases where it can be deemed that the Illustrative Evaluation Regulations restrict gift tax liability to a discrete set of acts or transactions and confines the scope of taxation within certain bounds with a view to ensuring predictability on the part of taxpayers and stability in tax law relationship. In other words, the significance of the subject case lies in the Supreme Court’s first-ever holding that: (a) Article 2(3) of the IGTA serves as a ground for imposing gift tax liability; but at the same time, (b) the imposition of gift tax liability under said provision has certain limits in relation to the Illustrative Evaluation Regulations. Such limitations on gift taxation can only be further delineated by interpreting tax liability and scope as provided under the Illustrative Evaluation Regulations. Thus, it is anticipated that their content and standard will gradually be specified going forward by the accumulation of precedents on individual issues.