부담부증여의 과세상 취급에 대한 고찰 = A Study on the Tax Treatment of Burdened Gifts

다국어 초록 (Multilingual Abstract)

When a burdened gift—a transaction in which gratuitous and onerous elements are combined—is made, taxable events arise with respect to three types of taxes：capital gains tax, gift tax, and acquisition tax. In practice, such transactions are often used as a means of tax planning to minimize the aggregate tax burden, namely the capital gains tax borne by the donor and the gift tax and acquisition tax borne by the donee. Furthermore, they may be exploited as a tool for tax avoidance by transferring fictitious liabilities to reduce the overall tax burden.
This article examines the tax issues and proposes improvements based on the recognition that there are discrepancies between the wording of the Inheritance and Gift Tax Act and the Income Tax Act with respect to burdened gifts, and that the taxation standards for acquisition tax under the Local Tax Act lack systematic coherence. The main points, summarized by each type of tax—gift tax, capital gains tax, and acquisition tax—are as follows.
First, with respect to gift tax, it is appropriate not to limit the scope of deductible liabilities in a burdened gift to those secured by the gifted property, but to extend it to include the donor’s general liabilities. Furthermore, in the case of liabilities secured by the gifted property, it is reasonable to allow deductions not only for the donor’s liabilities but also for those of third parties.
Second, with respect to capital gains tax, there is a discrepancy between the IGTA and the Income Tax Act regarding the amount of liabilities assumed by the donee, and thus harmonization is required. In addition, when calculating capital gains arising from a burdened gift, it is appropriate, in accordance with the principle of consistency, to determine both the transfer value and the acquisition value based on the officially assessed value.
Third, with respect to acquisition tax, it is necessary to establish separate criteria for recognizing onerous acquisition in the context of burdened gifts, distinguishing them from ordinary acquisitions such as sales. Specifically, it would be appropriate to stipulate that the liabilities assumed by the donee must be genuine and that the donee must have the financial capacity to repay such liabilities.