최초 명의신탁 재산에서 파생된 주식에 대한 증여의제 과세범위 연구 ― 최근 대법원 판례 동향을 바탕으로 ―

Abstract

The Supreme Court precedents formed after the 2011-Du10232 decision show a tendency of narrowing the gift deeming provision’s scope of application based on unwritten legal principles such as taxation equity without any mentioning on the legal requirements stipulated in Article 45-2 (1) of the Inheritance and Gift Tax Act such as the purpose of evading taxes. Especially, despite the fact that the factual background of how the trustee of an initial share title trust reacquired the new shares replacing the old ones which had been subject to the initial title trust is different in each case, the Supreme Court is denying dual application of the gift deeming provision mechanically and without sufficient reasoning. Whether registering shares acquired with the sale proceeds of other shares which had been subject to an initial title trust under the name of the trustee of that initial title trust shall be deemed a gift must not to be determined in the uniform way suggested by the Supreme Court, but on a case-by-case basis depending on whether the transaction derived from the initial title trust in each case meets the legal requirements set forth in Article 45-2 of the Inheritance and Gift Tax Act. If the Supreme Court’s ruling were to be applied even in cases where it is impossible to impose gift tax on the initial title trust in accordance with Article 45-2 of the Inheritance and Gift Tax Act due to reasons such as the expiration of the imposition period, such application would lead to consequences that are contrary to the legislative purpose of the provision. To judge that the provision is not applicable in such cases by reason that the shares were acquired by the trustee of the initial title trust despite the fact that subsequent title trusts are still being repeatedly entrusted with tax evading purposes would disable the sanctioning function of the gift deeming provision and is beyond the limits of the legal interpretation. Although the penalty imposed by the dual application of the aforementioned gift deeming provision may cause excessive burden to the relevant taxpayers, narrowing the scope of application of Article 45-2 of the Inheritance and Gift Tax Act by interpretation which lacks any relevance with the legal requirements stipulated in the Article shall not be regarded as an acceptable solution to this problem as this is a problem to be solved through strict legal interpretation.