자산의 고가양도와 증여세 과세 - 대법원 2013. 8. 23. 선고 2013두5081 판결 -

Abstract

The Supreme Court decision 2013Du5081 decided on August 23, 2013 covers the issue of donation taxation in case of high price disposal of assets to persons other than those in a special relationship. The first issue in this case is to arbitrate between capital gains tax and donation tax to solve the double taxation problem. The second issue is the burden of proof regarding the statement, ‘without any justifiable reasons in the standard practices of transactions,’ an additional tax requisition to property transfer between persons other than those in a special relationship. The existing tax law levies donation tax on the difference between the transaction value and market price in the case of high price disposal of assets. On the other hand, to solve the double taxation problem, it also levies capital gains tax on transfer price as market price – instead of on transfer price as transaction value. The adjustment plan of double taxation is based on Article 96(3) subparagraph 2 of income tax law created on December 31, 2007. The target case, however, is a transaction made before the law’s creation. There thus follows a dispute over the imposition of donation tax because Article 2(2) of the previous inheritance and gift tax law, or principle of precedence in income taxation, implies that the case is merely an object of capital gains taxation according to actual transfer price, and donation tax cannot be imposed. One should, however, consider the positions of the Constitutional Court and decisions from the Supreme Court before coming to any conclusion. The Constitutional Court contends that double taxation per se is not the standard of judgment for violation of the constitution. It also asserts that if constitutional values are violated as excessively infringing upon taxpayers’ property rights, then it is a violation of the constitution. The Supreme Court decision 2012Du3200 decided on June 14, 2012 ruled that even in the case of high price disposal of assets where taxpayers of capital gains tax and donation tax are the same person, imposition of capital gains tax and donation tax is legal because the Article 2(2) of the inheritance and donation tax law is not double tax avoidance clause. Judging from the above, it seems unjust to accuse the case of illegality despite the double impositions of capital gains tax and donation tax because there follows an appropriate process of mediation for double taxation. The target decision, on the other hand, puts the entire burden of proof of the existence of justifiable reasons in the standard practices of transactions to taxation authority. It then accepted subjective elements, such as expectations for increase in value of stocks due to management participation by a transferee and repurchase guarantee of trade opponent, as justifiable reasons in the standard practices of transactions. The target decision, however, denotes such subjective elements can be proof of ‘objective causes,’ which cannot be seen as abnormal from the viewpoints of rational economic actors, and thus the decision acknowledges excessively wide scope of justifiable reasons in the standard practices of transactions. The consequence is nullifying the legislative intent of the article to assess donation tax even to abnormal transactions between persons other than those in a special relationship. The decision therefore seems irrational.