양도소득의 부당행위계산 관련 소득세법 제101조 제2항 및 제3항에 대한 연구

Abstract

The paragraph 2 of the Article 101 of the Income Tax Act is enacted to preclude unjust tax evasion activity which is done by firstly donating a certain asset to the affiliate person and then handing it over to the transferee in order to decrease unduly the capital gain tax. It also intends to remedy unfair tax burden which may arise due to the type of transaction the taxpayer adopts. Due to the constitutional discordance adjudication on this paragraph established in July, 2003, in the case where the capital gain tax is levied to the transferor, the gift tax should be retracted and this paragraph was amended according to this adjudication. This thesis intends to review the appropriateness of that adjudication and to clarify the scope of application by means of the interpretation of the paragraph 2 and 3 of the Article 101 and to suggest the problem in current regulation and the method to reform. This thesis is of the opinion that the donation activity which falls under the category of the paragraph 2 of the Article 101 should cover not only the false donation but also the real donation. This thesis does not approve the constitutional discordance adjudication which insists that the assessment of capital gain tax to the transferor and gift tax to the transferee cannot be compatible because of double-taxation. So, this thesis is of the opinion that paragraph 3 of the Article 101, which regulates not to assess gift tax to the transferee in case where the capital gain tax is levied to the transferor, should be abolished because this causes unfair treatment to the other transferee.