명의신탁 증여의제 규정의 문제점 및 입법론적 대안

Abstract

Some still argue that provisions for legally fictitious gift of nominal ownership are unconstitutional, even though such provisions have been found constitutional by the Constitutional Court. In addition, although the substance of such provisions is an administrative sanction, they take the form of a gift tax, a discrepancy between substance and form has been pointed out. Considering these problems, the Supreme Court has recently made rulings that interpret and apply these provisions in a restrictive manner. Pursuant to legally fictitious gift provisions, trustees, who do not obtain any gain from nominal ownership, are primarily liable to pay gift taxes, and the amount of gift taxes imposed is much higher than the amount of evaded taxes. While it is necessary to curb nominal ownership for tax evasion purposes, alternative legislation is indispensable. There are two alternatives worth considering: the first is to impose gift taxes by regarding nominal ownership as a gift but adjusting the amount of gift taxes imposed in proportion to the amount of evaded taxes, the second, a more fundamental solution, is to abolish legally fictitious gift of nominal ownership, impose the original taxes on evaded taxes and additional unreported taxes, and slap on further administrative sanctions.