명의신탁 증여의제 규정과 조세회피목적 - 부과회피와 징수회피에 관한 해석론을 중심으로 -

Abstract

According to Article 45-2 of the Estate and Gift Tax Act (“Article”), where a substantive owner with a tax avoidance purpose registers certain types of assets (e.g. shares) on a nominal owner’s name (“title trust”), such title trust is regarded as a taxable gift by the substantive owner to the nominal owner. The Constitutional Court of Korea and the Supreme Court of Korea have rendered decisions affirming that avoidance of tax collection as well as tax imposition falls within the scope of the tax avoidance purpose of the Article. However, this position that treats the avoidance of tax collection as the tax avoidance purpose may result in difficult issues in applying the Article to title trust and even expand the scope of the Article too broadly. Therefore, it is necessary to restrict the application of the Article to avoidance of tax collection. The authors propose several interpretive approaches to achieve this goal in this article.