명의신탁재산 증여의제 규정 폐지시의 대안에 관한 연구

Abstract

Article 45-2 of the Inheritance tax and Gift Tax Act stipulates that if a real shareholder does not register in the shareholder's name under his name and registers in the name of another person, tax official shall impose a gift tax on the person who borrowed the name. It is the provision of the fictitious donation of registered property under a third party's name. I think that the provision of the fictitious donation of registered property under a third party's name is a violation of the Constitution because it is against the principle of substance over form taxation which is the basic principle of the tax law because it imposes a gift tax on the trustee who does not possess any ability-to-pay. Therefore, the above clause should be abolished. Measures after abolishing the current Article 45-2 of the Inheritance Tax and Gift Tax Act that prescribe the fictitious donation of registered property under a third party's name include measures not to offer any alternative, imposing criminal penalties and penalties like real estate, imposing negligence penalties. Among them, I think it is reasonable to impose negligence penalties on the trustor and the trustee. This alternative is consistent with the fact that the character of the fictitious donation of registered property under a third party's name is an administrative sanction and also conforms to the principle of self-responsibility.