명의신탁의 세법상 적용과 주요 쟁점에 관한 검토

Abstract

Nominal trust is a system such like the settlor possesses ownership internally and own person’ name in the register belongs to the fiduciary according to agreement between two parties on ownership of the property that can be announced publicly by the register. Tax issues related to nominal trust are able to be largely divided into nominal trust and the doctrine of substance over form, the fictitious gift of nominal trust on stocks, gift presumption on other-name deposit, taxpayer belonging to transfer income tax regarding real-estate trust, fraudulent actions and taxation matters etc. Representative one concerned to the nominal trust is the regulation on fictitious gift in Article 45-2 of 「Inheritance Tax and Gift Tax Law」. This regulation is not applied to real-estates such as land and buildings etc. and has its intent of preventing tax avoidance actions through other-names. In the meantime, unconstitutionality issues such as logicality from constitutional theoretical aspects, appropriateness of sanctions, and the principle of proportionality etc. have been raised in taxing the nominal trust as gift tax. While its framework has been sustained by the decision on constitutionality of Constitutional Court of Korea, several amendments have been made by reflecting judicial precedents. On the other hand, ‘gift presumption on other-name deposit’ in Section 4, Article 45 of Inheritance Tax and Gift Tax Law newly established is expected to bring about many changes in transacting other-name deposits that have not been regulated by Finance Real Name Transaction Law. Merely, conflicts with taxpayers are anticipated surrounding applications owing to ambiguity of new regulation. In addition, on taxpayer belonging to transfer income tax regarding real-estate nominal trust besides the aforesaid issues, fraudulent action and taxation matters correspond to very important contents in practices. Same as above, this study looked into taxation issues related to nominal trust comprehensively, and thus it has limitations in containing profound contents. Therefore, focus was laid on treating contents that could give helps to practices if possible. And the study deduced application problems of current regulations through judicial precedents etc. because there are applying difficulties only with current regulations on the nominal trust of various types. With above discussions, this study expects that the results would contribute to fair taxation so that tax officials could interpret and apply correct tax laws.