증여세 완전포괄주의에 관한 연구

Abstract

The people in Korea have had negative views on wealth while in the process of industrialization since the chaebols, family controlled conglomerates, have frequently exploited illegal or unethical political connections to make money. That's why our inheritance tax and gift tax law has been gradually strengthened. The limited negative system had been introduced to tax on the explicitly listed activities in 1998. The itemized negative system had been adopted to tax on the items explicitly listed and the acquired "direct or indirect gains" with "similar cases in methods or gains" in 2001. The complete negative system has been enforced to tax on any free transfer of wealth even if the law doesn't specify the activities or the name, type, or purpose of transactions. It was anticipated that any new or irregular inheritance or gift without tax could be exterminated with the introduction of the complete negative system. However, the tax evasion has continued through irregular business transactions since the legalization of the complete negative system for inheritance and gift tax. For example, the affiliated companies of Hyundai Motors have given orders exclusively for favors of the Glovis which is controlled by the dominant stockholders of Hyundai Motors and it stirred a social debate because the tax authorities expressed difficulties to tax on those transactions. This has raised issues again that the complete negative system on inheritance and gift tax law could be against the constitution and the law could be ineffective. The problem of the current negative list of gifts is that the tax authorities have difficulties to define the taxable transactions and calculate the taxable amount for inheritance and gift, which causes difficulties to tax on them. Therefore, it is desirable to restrain taxing on the transactions not listed on the examples of the rules, and to apply the law for the new types of transactions when the enforcement decrees and rules are legalized so that the law provides tax payers with stability and predictability. When the tax authorities make an effort to get credibility from the people for their tax administration for a long time, it will be possible to enforce the negative system on the gift tax without difficulties under the taxation with principles. Several articles of inheritance and gift tax act such as Articles 2(4), 41(3), 41(5), and 42(4) have issued a problem causing inconsistency with legal principles because they have ignored the characteristics of separate transactions following the first transaction with gift and just combine them with the original transaction to define the whole transaction. It appears that the tax authorities have obsessed to strictly enforce the law to attain the goal by unduly including non-gift items in the transaction. In order to solve this problem, it is highly recommended to introduce capital gain tax system. Currently it could be very difficult to abolish the inheritance and gift tax and introduce capital gain tax system. However, it is necessary in the mid to long term basis to change the inheritance and gift tax to the capital gain tax system after establishing the groundwork of the system and policy. There is another problem caused by disproportional taxing depending on the types of gifts which is against the principle of negative system since the law defines every example of gifts. Therefore, to tax equitably depending on types of gifts it would be reasonable to categorize transactions into general and capital transactions according to the sources of gain and then to deduct or not to tax up to the certain amount. It is not desirable to depend wholly on tax system to punish antisocial or unethical behaviors in order to attain certain government policies. It would be feasible to make restrictions on companies' decision making by revising commercial law to prevent the business transactions which affiliated companies favor a specially related company whose not listed on the stock market. In addition, following international trends of relaxation or abolishment of inheritance and gift tax law, it is highly necessary to review the option of relaxation of inheritance and gift tax law.