재산 취득 후 재산가치 증가에 따른 이익 증여 규정(상속세 및 증여세법 제42조의3)의 해석론- 대법원 2023. 6. 1. 선고 2019두31921 판결 및 대법원 2023. 6. 29. 선고 2018두41327 판결을 바탕으로 -

Abstract

The Article 42-3 of the Inheritance and Gift Tax Act imposes gift tax on gains arising from the acquisition of property through gifts or other means from individuals with special relationships, where the value of the property increases due to the implementation of development projects, changes in form, division of shared property, or reasons such as the approval or permission of business. In this paper, three key points regarding the interpretation of Article 42-3 of the Inheritance and Gift Tax Act [formerly Article 42 (4) of the Old Inheritance and Gift Tax Act] are discussed based on the Supreme Court rulings on June 1, 2023 (Case No. 2019Du31921) and June 29, 2023 (Case No. 2018Du41327). The content is as follows: First, considering that the old Article 42 (4) of the Inheritance and Gift Tax Act was enacted to fill the taxation gaps in response to expedient gifts, the reasons for the increase in property value in the old Article 42 (4) should be interpreted as examples. Therefore, gift tax can be imposed not only when the value of property increases due to the implementation of development projects, changes in form, division of shared property, or business approval/permission but also when there is an objectively clear expectation that the value of property will increase in the future due to similar reasons. Second, as the Inheritance and Gift Tax Act differs from the Development Gains Tax Act in terms of its legislative purpose and intent, and does not have any application provisions, it is not valid to interpret ‘implementation of development projects’ in the old Article 42 (4) as having the same meaning as ‘development projects’ in the Old Development Gains Tax Act. ‘Development projects’ should be interpreted as a concept that includes not only the development of land but also the construction of buildings, construction of factories, and all real estate development projects. Third, imposing gift tax on the indirect gains of shareholders who obtained increases of the value of shares of a corporation due to the implemenation of development projects or other listed reasons is not permissible. This conclusion is based on considerations of systematic coherence, potential infringement on citizens’ property rights, difficulties in tax administration, and the possibility of violating the principle of clarity in tax conditions. However, in order to prevent illegal donations that evade gift tax through corporations, legislation should be enacted to clearly define gift tax requirements for indirect profits of shareholders.