주식명의신탁 과세연구 - 외국의 입법례와 문제점 중심 -

Abstract

In light of existing customary taxing practices and court rulings, the gift tax imposed by regulations concerning legal fiction in donation of title trust in accordance with Inheritance and Gift Tax Act carries the connotation of “sanctions” or “penalty” rather than actual “tax”. In general, the fundamental purpose of tax is in meeting the fiscal need of the national government and local autonomous government agencies, but another leg of its purpose is the function as a political and policy decision tool by the national government. However, if this function of taxation as a political or policy tool is over-used, citizens’ perception on government tax will sour with defiance, which would result in failing to serve its original purpose the law makers intended. Therefore, even if taxes are used as a tool for policy purposes, it should not go beyond its inherent limits and also should not be at odds with constitutional principles. In this sense, previous customary practices on taxation and court rulings concerning the title trusting of stocks are rather inappropriate as in taxing the “trustee” who simply lent his/her title although the possible person to be blamed is the title “trusting” party. Furthermore, any probability of evasion of tax was regarded as intent to evade taxing, as a result even the title trust without the intention of tax evasion was not acknowledged. Therefore, if it is necessary to sanction the title trusting of stocks, it would be more appropriate and fair to impose additional tax or penalties through separate laws rather than making a ligal fiction as a gift.