신탁을 이용한 세대생략 자산이전에 대한 과세–비교법적 검토를 중심으로–

Abstract

The Trust Act was totally revised in 2011 in Korea. The reason was that the Trust Act had been operated without much change since 1961, but it is needed to promote the revitalization of the trust system in consideration of the changed social reality. As a result, a new type of trusts are introduced. The new type of trusts will be used as a means of succession or management of assets. As a result, trust taxes related to inheritance taxes or gift taxes will be a problem in connection with the succession of assets. In this regard, there was a major tax revision at the end of 2019, but some are pointed out as problems in terms of inheritance and gift taxes. In this thesis, it will consider whether the current inheritance and gift tax laws can be used to cope with the transfer of assets that skip generations or transfers of assets that skip generations. If current regulations make it impossible to tax the transfer of generational skipping transfer assets using trusts, it will consider what limitations are in the analysis of the regulation and what points should be supplemented. In this regard, first, regardless of whether the intermediary is direct relationship or not, generation skipping transfer tax should be applied. In this regard, the U.S. generation skipping transfer tax can be referred. Second, Under the current Inheritance Tax and Gift Tax Act, gift tax requires that the beneficiary is a direct descendant, not the donor's children. In some cases the same as the trustee in the trust. Considering these points, it is necessary to stipulate that unfair tax burden does not occur even when profits are transferred through the act of transferring the status of the truster. In addition, if the existence of a beneficiary subject to surcharge tax is after an excessively long period of time, an unnecessary tax gap may occur. In this regard, the provisions of the Japanese Inheritance Tax Act may be referred. And trustee could be a tax payers if there is no a direct descendant or not exist yet. These cases will be recognised as an example of the prevention of tax avoidance in our country and will allow the taxpayer to achieve predictability and legal stability by being prescribed in the statute. The newly introduced trust taxation will also reflect this and be established as a trust taxation system consistent with constitutional legalism and tax fairness.