Key Legal Issues and Alternatives Arising from Taxation of the Constructive Gift on the Norminal Owners of Registration Assets -Focusing on the Precedents of Supreme Court and Constitutional Court-
Asian Tax Journal Vol. 15 No. 6 (2014), pp. 347-368
Abstract
This thesis presents an key legal issues and alternatives arising from article 45－2 of InheritanceTax and Gift Tax Law by monitoring the precedents of supreme court and constitutional court. First, nominal owner is levied gift tax regardless of tax avoidance tax item and tax amount oftitle owner. The precedents of supreme court 2004두7733 shows reasonable criterion for smallamount of tax avoidance and excessive amount of gift taxSecond, circumstance of nominal owners of registration assets, though title owner ask fornominal owner, nominal owner primarily responsible for pay gift tax. This method confirmsgeneral rule of gift tax. But in regard of principle of weighing the responsibility, it can notexplain logically. Third, broadening of tax item is not the compatible solution to cope with taxpayer’s taxavoidance. Constructive gift on the nominal owners of registrations assets is applied gift taxavoidance only, if other tax item is avoided, levied other tax item, not the gift tax. Fourth, the aim of constructive gift on the nominal owners have various kinds of intention. It isa seriously wrong judgement to estimate that all constructive gift on the nominal owners put intotax avoidance action. The aim and tax amount of tax avoidance is a important criterion levied gifttax Finally, Article 45－2 of Inheritance Tax and Gift Tax Law has a ground that a gift tax islevied on the non gift case regardless of article 14 of the basic law for national taxes. Originally,legistrative intent of article 45－2 prohibits taxpayers from constructive gift on the nominalowners of registrations assets for tax－avoidance. In order to achieve this purpose efficiently, usingnot tax system but penality. Additionally, if taxpayers uses constructive gift on the nominalowners of registrations assets, tax office must levy evaded tax items. For instance, tax payer make a money 10,000$ by tax－avoidance of acquisition tax, tax office must levy acquisition taxincluding additional tax, not levy Inheritance Tax and Gift Tax Law by Article 45－2. In thisreason, in the long view, article 45－2 of Inheritance Tax and Gift Tax Law must go out of force.
Keywords
- Article 45－2 of Inheritance Tax and Gift Tax Law
- Taxation of the Constructive Gift on the Nominal Owners of Registration Assets
- Tax－Avoidance Purpose
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