거주자가 외국법인에 외국법인 주식을 명의신탁한 경우 거주자의 증여세 납세의무

Abstract

According to Article 4(1) of the Inheritance and Gift Tax Act, nominal trust of stocks issued by a foreign corporation by a resident to a foreign corporation creates the legal fiction as donation of title trust property and may be interpreted such that the real owner is liable for gift tax. However, the above law is based on the presumed application of Article 45-2 of the Inheritance and Gift Tax Act, which provides regulation on the legal fiction as donation of title trust property. However, the provision on legal fiction as donation of title trust property apply only to stocks issued by a domestic corporation. Furthermore, real estate located outside of Korea are not subject to the regulation in accordance with the Act on the Registration of Real Estate under Actual Titleholder’s Name. As such, stocks issued by a foreign corporation are not subject to gift tax under the law on legal fiction as donation of title trust property. In addition, Article 4(1) of the Inheritance and Gift Tax Act, which serves as the basis for application of the legal fiction on donation of title trust property, is also not applicable. Therefore, gift tax should not apply to residents under the legal fiction as donation of title trust property provision. In addition, with respect to the question of whether the willful penalty tax for non-filing applies as opposed to the general penalty tax for non-filing in relation to gift taxes on legal fiction as donation of title trust property, the purpose of the legal fiction as donation of title trust property law is to prevent tax avoidance and as such, cannot be regarded as fraud or other unlawful activity under the Punishment of Tax Evaders Act. Given that the nature of the gift tax for the legal fiction as donation of title trust property law is a form of penalty as opposed to a tax, the gift tax associated with the legal fiction as donation of title trust property should not involve the imposition of willful penalty tax for non-filing as opposed to the general penalty tax for non-filing.