資本去來를 통한 贈與擬制 課稅制度에 관한 硏究 = (A) Study on Taxation of the Ficticious Gift through Capital Transactions

다국어 초록 (Multilingual Abstract)

The gift tax which is levied on those who take economic interest without reward may complement the succession tax designed to levy tax on the heirs who tend to evade the higher ratio of success tax. On the other hand, if any transaction does not take the form of gift but its substance corresponds to gift, it will be considered as fictitious gift subject to the gift tax.
As the economic system develops, most companies are organized and operated in the form of corporate, and accordingly, the capital transactions through stock exchanges and corporate succession become major means of inheriting the wealth and controlling the corporates. Thus, many companies evade the taxes in such processes as subscription, increase of capital, reduction of capital, transaction, succession, gift and merge, in order to hand over the shares to their heirs in advance. In short, cases of evading the gift tax increase.
Under such circumstances, this study was aimed at addressing the problems involving the capital transactions under Succession Tax Code, Gift Tax Code and Corporate Tax Code and suggesting their solutions in order to help prevent gift tax evasions and thereby, ensure fair taxation for all tax payers.
The reform measures can be summed up as follows;
As reform measures for the Gift Tax Code regarding the capital transactions,
First, Succession Tax Code and Gift Tax Code should be amended to expand the scope of application not only to the gift under the Civil Code but also to the cases where assets or profits are acquired without reward.
Second, the current law system dividing the gift into actual gift and fictitious one should be integrated into "asset gift", while the types of asset and profit to be subject to the fictitious gift should be specified to tax all similar transactions.
Third, in case an unfair transaction has resulted in unbalanced capital increase or reduction suspicious of a fictitious gift, the gift tax should be levied on all the profits or gains due to the transaction except for their 30% or 100 or 300 million wons. Moreover, the amount of money less than the lower limit for the gift tax needs to be included in the gift asset to be summed up into the gains acquired within 10 years thereafter. And then, the gift tax should be levied in the same way as above.
Fourth, in case of the listed stocks, either the final price formed at the stock exchange market over the last 2 months or the price on the reference day which is lower should be adopted to reflect timing and reality of the stock price referred to when the gift tax is applied. Furthermore, in case of the unlisted stocks, the relevant codes need to be amended for the sake of evaluation, and in case of the stocks listed at the association, the relevant codes need to be rewritten so that the conflicts between Succession Tax Code and Gift Tax Code in terms of reference day and complementing scope may be resolved.
Fifth, it will be more reasonable to levy the gift tax on any economic profits whether the profits occur between those specially related or large shareholders. At least, the scope of the persons specially related with each other - specified in Article 32 ∼ 45 of the Gift Tax Code needs to be unified, while the scope of capital transactions and specially related people be simplified or unified.
Regarding the tax on shareholder's unfair transactions,
First, the current Corporate Tax Code should be amended, like Succession Tax Code and Gift Tax Code, to tax the profits from merge, capital increase or reduction or convertible bonds as well as through a certain corporate and from listing of stocks, registration of stocks with the association in order to solve the unbalanced taxation between individual shareholders and corporate owners.
Second, in order to deny the unfair transactions in the similar financial transactions (including distribution of asset or profits), an omnibus code should be enacted to prevent new types of tax evasions.
It is hoped that the results of this study will be referred to when making efforts to address the problems involving ever-complicated capital transactions or illegal gifts and explore their solutions. Lastly, it is hoped that this study will be followed up by future studies focusing on correction of unbalanced distribution of wealth and unfair inheritance of wealth through tax evasions.

목차 (Table of Contents)

• 목차 = ⅰ
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 方法과 範圍 = 2
• 1. 硏究의 力法 = 2
• 2. 硏究의 範圍 = 3
• 第2章 資本去來와 관련한 贈與擬制 一般論 = 5
• 第1節 贈與擬制 課稅制度 槪要 = 5
• 1. 贈與와 贈與稅制 = 5
• 2. 贈與擬制 課稅制度 = 6
• 3. 贈與擬制 課稅制度의 必要性 = 8
• 第2節 外國의 贈與擬制 課稅制度 = 12
• 1. 美國 = 12
• 2. 日本 = 15
• 3. 獨逸 = 17
• 第3節 現行法上 資本去來와 관련한 贈與擬制 課稅制度 = 20
• 1. 個人株主에 대한 贈與擬制 課稅類型 = 20
• 2. 法人株主에 대한 贈與擬制 類型 = 43
• 第3章 資本去來와 關聯한 贈與擬制의 立法過程 = 57
• 第1節 個人株主에 대한 贈與擬制 = 57
• 1. 合倂時의 贈與擬制 = 57
• 2. 增資에 따른 贈與擬制 = 60
• 3. 減資에 따른 贈與擬制 = 63
• 4. 轉換社債利益에 대한 贈與擬制 = 68
• 5. 特定法人과의 去來를 通한 利益에 대한 贈與擬制 = 72
• 6. 株式의 上場·協會登錄에 따른 贈與擬制 = 75
• 7. 資本去來 關聯 包括的 贈與擬制 = 78
• 第2節 法人株主에 대한 贈與擬制 = 81
• 1. 立法背景 = 81
• 2. 課稅規定 變遷過程 = 85
• 第4章 現行制度의 問題點 및 改善方案 = 88
• 第1節 個人株主 贈與擬制 課稅制度 = 88
• 1. 資本去來 관련 贈與擬制 全般的인 問題點과 改善方案 = 88
• 2. 資本去來 관련 贈與擬制 個別規定의 問題點과 改善方案 = 93
• 第2節 法人株主 不當行爲否認 課稅制度 = 104
• 1. 資本去來 관련 不當行爲否認 全般的인 問題點과 改善方案 = 104
• 2. 資本去來 관련 不當行爲否認 個別規定의 問題點과 改善方案 = 105
• 第5章 結論 = 107
• 參考文獻 = 114
• ABSTRACT = 116