명의신탁재산의 증여의제에 있어서 조세회피 목적의 유무 = The Purpose of Tax Evasion in Constructive Gift for Nominal Trust

다국어 초록 (Multilingual Abstract)

According to the precedent, nominal trust is such a theory that in the internal relations between the parties, trustor has an ownership, can use, make profits of, and dispose of an object in trust but in the eaternal relations against a third party though trustee has the nominal ownership in the public registration, trustee shall be regarded as perfect owner.
The Inheritance Tax and Gift Tax Law regards the registration of properties other than real estate in other person's name as donation to the nominal owner and usually levy a gift tax on the properties. The legislative purpose is to prevent the evasion of overall taxes including national tax, local tax and custom duties.
Nominal trusts should be classified into two groups. One of them is the normal nominal trusts, the other is the nominal trusts for the purpose of tax evasion.
Whether levy a gift tax or not, in constructive gift for nominal trust depends on the purpose of tax evasion, and the burden of proof should generally be on the taxpayer to prove that a transaction was a normal nominal Trust.
In this paper, we will look at recent cases in the courts on the tax avoidance in applying constructive gift for nominal trust, and some problems of the current Inheritance Tax and Gift Tax Law system for the prevention of tax avoidance.
We have found out some problems of the current constructive gift for the nominal trust. The most important problem is that the imposing a gift tax to the constructive gift for nominal trust is not harmonized with the principal of the Tax Law in both legislative and judical approaches. This paper make some proposals for the improvement of the Inheritance Tax and Gift Tax Law system.

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