주식 명의신탁 과세제도 개편방안 연구

Abstract

This study was progressed in order to elicit a reasonable plan of reorganization by researching into the deemed gift on the property trusted nominally, focusing on stocks. To achieve the objective, this study theoretically considered on the nominal trust taxation in accordance with the inheritance & gift tax law, examined the transition process in the meantime, and confirmed problems based on taxation systems, prior researches, the written decisions of the Constitutional Court, and the taxation cases in major foreign countries. And it carried out a questionnaire survey targeting national tax officials, taxation agents, and the interested parties in nominal trust and then conducted empirical analysis on problems and reorganization plans for the current deemed gift taxation on the stock trusted nominally focusing on stocks. The following are the results of research and empirical analysis on the problems about the current taxation on the stock trusted nominally. First, the deemed gift taxation on the stock trusted nominally fails to be balanced in comparison with the imposition of surcharge on the real estate trusted nominally. Second, the taxation on the stock trusted nominally failed to be the balanced taxation by possession type. This is considered to result from rigidity as saying that a considerable part needs to be based on transfer of shareholders name on the stockholder's list. Third, the continuous argument of unconstitutionality is what originates from the attitude of trying to solve the insufficient provision of tax regulation as the decision and judgment of a fact in the process of the administrative execution, in addition to no change in recognition of taxation on the comprehensive gift and the enlarged gift. The present status of the administration is well disproving this. To reduce the above problems, the following plans for reorganization were suggested. First, there is a need of being made legislation that can be the balanced taxation in the economically substantial aspect in comparison with the real estate trusted nominally. Second, there will be a need of being revised as the legislation of taxing given having completed acquisition of stocks under the de facto disguised ownership, even in addition to having the title transfer as the basis of taxation requirement. Third, there is a need of making it clear as the law that it is taxation with the aim of tax policy while enforcing a plan for comprehensive gift and separate taxation in the title truster in order to reduce the continuous argument of unconstitutionality. Forth, to fundamentally solve the argument of unconstitutionality, there is a need of legislation of having agenda as what has the aim of avoiding tax in all the cases of not reporting a fact of acquiring stocks under the disguised ownership in advance and explicitly to the taxing authorities, in the phase of deciding on the appearance of the aim to avoid tax. The limitations in this study include a part of needing to overcome a problem of generalization that comes from the restriction of questionnaire, what had been insufficient in a detailed research on how it will conclude practically as for a problem that is difficult to definitely confirm the basic fact of existing as diverse aspects, and what is needed an additional research on evaluation of property, responsibility for supporting evidence, and a part of balanced taxation with other property. Hence, a follow-up research of including these limitations is expected to be continued. Reorganization on the elicited problems is expected even if the research was finished.