자산의 저가․고가 양도시 양도소득세․증여세의 이중과세에 관한 연구

Abstract

The transferor is subject to capital gains tax at normal transaction of assets, while donee is bound to pay gift tax. However, the problem of a double taxation arises when assets are sold at a lower or higher price than market price. In case of low price disposal of assets capital gain tax is levied on transferor and gift tax is imposed on transferee at the same time. In this case the Supreme Court ruled a double taxation is allowed under the current law. Contrarily, in case of high price disposal of assets both capital gain tax and gift tax are in a situation to be levied on transferor. There are several provisions about the adjustment of a double taxation. The Article 2 (2) of the Inheritance Tax and Gift Tax Act stipulates that the gift tax cannot be imposed on the donee when an individual income tax under the Income Tax Act is levied on him or her. The Article 96 (3) 2 of the Income Tax Act and the article 162-6 (6) of the Enforcement decree of the Income Tax Act are applied to the transaction between specially not-related person. The Article 96 (3) 2 of the Income Tax Act stipulates that the market price as referred to in Article 35 of the Inheritance Tax and Gift Tax Act shall be deemed as the actual transaction value at the time of transfer if assets are transferred to a specially not-related person in a higher price than the market price. The article 162-6 (6) of the Enforcement decree of the Income Tax Act stipulates that the term “market price” of the Article 96 (3) 2 of the Act means the amount obtained by subtracting the value of donation pursuant to the Inheritance Tax and Gift Tax Act from the price. This paper deals with the problems and reform proposals regarding the double taxation of capital gains tax and gift tax in case of low price or high price disposal of assets.