황혼이혼과 사별의 과세문제

Abstract

The ‘late-life divorce’ which emerged as a social issue at the end of the 1990s, has increased significantly as Korea has gradually entered an aging society and it has grown to account for about 30% of the total divorce in 2015. In addition, the number of married couples who remarry after divorce has increased in recent years while entering an aging society and the percentage of de facto marriages that do not report marriage tends to increase due to conflicts due to new family relationships, property relations, opposition from children, etc. As a result, discussions related to family law, such as divorce, remarriage, and de facto marriage, are actively underway. In this article, based on the significance and status of late-life divorce, remarriage and de facto marriage, it aims to take a look at the judicial handling and taxation treatment of each case mainly on the case that one spouse is deceased in legal marriage and de facto marriage relationships when marriage has ended by late-life divorce and spouse’s death and suggest improvement plans on the related taxation issue and the analytical and legislative perspectives on this. Specific improvement measures are as follows. First, the amount limit of the marital deduction should be abolished. Division of property at divorce and inheritance at bereavement are varying in property and status relationships so that it is necessary to narrow the taxation gap in the fact that the intrinsic nature of property division and spousal inheritance has a common aspect of the division of common property and financial support even though the tax treaties cannot be completely the same. It is unreasonable to exclude the spousal inheritance exceeding the amount of 3 billion won in total, regardless of the part of the spouse who contributed to the formation of his/ her property. It is reasonable to abolish the amount limit of the marital deduction and not to impose inheritance tax for the part(for example, spousal statutory inheritance) which can be considered same in the fact that it actually implies division of common property and financial support among the property inherited by a spouse. Second, it should be interpreted that a de facto spouse is also applied to the marital deduction under the statutory tax law. Even if the relationship with the law of inheritance is inevitable as it borrows the concept of inheritance of civil law under the statutory tax law, it is not reasonable to exclude the marital deduction under the statutory tax law for the case that a de facto spouse is liable to pay inheritance tax. Furthermore, treating couple’s living community itself differently on taxation in the relationship of legal marriage and de facto marriage cannot be considered appropriate in the principle of taxation only by a formal declaration. Therefore, it is desirable to interpret it as including a de facto spouse in eligibility of the marital deduction under the statutory tax law.