배우자 등 특수관계인 사이의 고·저가 양도거래에 대한 실무상 쟁점과 법 해석론 - 양도소득세와 증여세의 과세문제를 중심으로 -

Abstract

This study has evaluated the interpretation of the law and practical issues in the field that the several provisions of tax law are applied at the same time based on case studies frequently occurring in business. In case that the several provisions of tax law are applied to a transaction, factual judgment based on actual taxation standard has to be taken into account since the application of a certain provision has a great effect on taxpayer. Results discussed are as follows; First, if the transaction between lineal ascendant and descendant is actually a transfer transaction, it should be determined whether the transaction falls under transfer at higher or lower price. Even if the appearance of the transaction is a transfer, gift tax issues has to be considered pursuant to Article 44 of the taxation on gift tax and inheritance tax act provided that the transaction, in fact, falls under a gift. To do this, the process of confirming whether the trading value has been exchanged between parties of the sales contract and the source of acquisition fund is needed. Second, it needs to comprehensively examine whether there is a violation of utmost good faith by taxpayer based on three legal precedents in the Supreme Court since the case for study has frequently been occurring. While the case of this study can be examined whether it has violated utmost good faith, this would not be conducted since there is not enough evidence to support 'gross betrayal by the taxpayer'. Third, as the taxpayer claims, if a gift tax is imposed based on the actual deal, additional tax can be imposed since the taxpayer has not reported and paid a gift tax. Fourth, if a donee is a direct descendant who can acquire assets considering the job, age, income and asset status, there is a chance that he or she would use a gift transaction rather than transfer even if he or she has a enough source to pay prices. Thus, the application of Article 45 of of the taxation on gift tax and inheritance tax act needs to be considered in the process of confirming the source of acquisition fund.