본 연구는 2004년 증여세 완전포괄주의가 도입된 이래, 논란이 되어왔던 포괄증여 개념에 대한 문제점을 살펴보고 이와 관련된 몇 가지 쟁점사례를 통하여 적용가능성을 검토하였다. 증여세 완전포괄주의에 대하여는 도입 당시부터 논란이 있어 왔으나, 현재까지 적용된 사례가 드물어 대법원이나 헌법재판소의 판례 등도 생성되고 있지 않은 상황이라 하겠다. 본 논문에서는 사례를 통해 포괄증여규정에 대한 시사점과 문제점을 도출하였는바, 요약하면 다음과 같다. 첫째, 자본거래에서 실제 측정할 수 없는 경영권 또는 영업권 획득 등과 관련한 증여이익 내지는 증가이익이 현실적으로 발생할 수 있으므로 상속세 및 증여세법(이하, ‘상증세법’) 제２조 제３항 및 제42조 기타 이익증여규정을 근거로 과세대상으로 삼을 수 있다. 둘째, 상증세법 제２조 제４항과 관련하여 증여세 등을 부당하게 감소하려는 의도적 거래에 대해서는 미국의 Step Transaction Doctrine의 요건을 참고하여 적용기준을 보완할 필요가 있다. 셋째, 상증세법 제42조 제１항 제３호가 기업의 출자, 감자 등의 자본이득에 대해 증여세를 과세하도록 하고 있으나 해석상 논란의 여지가 있으므로 이를 확장하여 사업목적이나 내용의 중대한 변동, 사업규모 변동, 구조조정 등도 포함하도록 보완할 필요가 있다. 넷째, 상증세법 제42조 제１항 제３호 또는 제４항의 규정이 내포하고 있는 최초 증여가 확정된 이후 새로운 사유로 인하여 미실현가치 증가분이 발생할 때마다 납세의무를 다시 성립시켜야 하는 문제가 있다. 이를 해소하기 위해서는 증여세 체계를 시점과세에서 일정 기간단위 과세로 전환하는 것도 검토할 필요가 있다. 이상의 지적과 같이 향후 입법적 개선과 함께, 증여세 완전포괄주의를 무리 없이 적용하려면 과세당국이 법인 등을 매개체로 한 새로운 변칙증여 형태를 지속적으로 추적․관리하는 노력이 필요하다. 다른 한편으로는 조세법률주의를 위배하지 않으면서 납세자의 권익이 침해되지 않도록 세밀한 법 적용이 필요하다 할 것이다.

This study investigated the problems in the concept of comprehensive gifts which have been a controversial issue since the complete－compre- hensive system of the gift tax was introduced in 2004, and reviewed the possibility of its application through a few cases of the related controversial issues. With respect to the complete－comprehensive system of the gift tax, there have been controversies since its introduction and there is no precedent cases where it was applied. So, the precedents have not been generated yet by the Supreme Court or the Constitutional Court. Through the cases reviewed in this study, the implications and the improvement opinions can be summarized as follows. First, as the gains from gifts and the increase of gains, like the acquisition of goodwill and management right which cannot be measured in capital transactions may take place, they can the be objects of taxation based on the other regulations of gratuitous transfer under the state and gift tax law, including article 2(3) and article 42. Second, with respect to the state and gift tax law, article 2(4), it is needed to supplement the application criteria for the intentional transaction aiming at illegal reduction of gift tax, by referring to the requisites of Step Transaction Doctrine in the United States. Third, the state and gift tax law, item 3 in article 42(1) imposes gift tax on the capital gains such as corporate capital investment and capital reduction, but it is needed to amend this to include the critical changes in business content, the changes in business scale, and the corporate restructuring through its expansion. Fourth, there is a problem in reestablishing the tax liability whenever the increments of unrealized value due to the subsequential reasons, since the initial gift contained by the regulations under the state and gift tax law, item 3 or item 4 in article 42(1) was decided. In order to resolve these problems, it is needed to review the changeover of gift tax system from the taxation by at point of time to the taxation by time period. With respect to the reviews as above, for the seamless application of the complete－comprehensive system of the gift tax, the efforts of tax authorities to continue tracing and monitoring the types of new anomalous gift through corporations as a vehicle, as well as the future legislative improvement, are needed. In addition to this, the detailed application of law without violating ‘principle of no taxation without law’ is needed not infringe the interests of taxpayers.

This study investigated the problems in the concept of comprehensive gifts which have been a controversial issue since the complete－compre- hensive system of the gift tax was introduced in 2004, and reviewed the possibility of its application through a few cases of the related controversial issues. With respect to the complete－comprehensive system of the gift tax, there have been controversies since its introduction and there is no precedent cases where it was applied. So, the precedents have not been generated yet by the Supreme Court or the Constitutional Court. Through the cases reviewed in this study, the implications and the improvement opinions can be summarized as follows. First, as the gains from gifts and the increase of gains, like the acquisition of goodwill and management right which cannot be measured in capital transactions may take place, they can the be objects of taxation based on the other regulations of gratuitous transfer under the state and gift tax law, including article 2(3) and article 42. Second, with respect to the state and gift tax law, article 2(4), it is needed to supplement the application criteria for the intentional transaction aiming at illegal reduction of gift tax, by referring to the requisites of Step Transaction Doctrine in the United States. Third, the state and gift tax law, item 3 in article 42(1) imposes gift tax on the capital gains such as corporate capital investment and capital reduction, but it is needed to amend this to include the critical changes in business content, the changes in business scale, and the corporate restructuring through its expansion. Fourth, there is a problem in reestablishing the tax liability whenever the increments of unrealized value due to the subsequential reasons, since the initial gift contained by the regulations under the state and gift tax law, item 3 or item 4 in article 42(1) was decided. In order to resolve these problems, it is needed to review the changeover of gift tax system from the taxation by at point of time to the taxation by time period. With respect to the reviews as above, for the seamless application of the complete－comprehensive system of the gift tax, the efforts of tax authorities to continue tracing and monitoring the types of new anomalous gift through corporations as a vehicle, as well as the future legislative improvement, are needed. In addition to this, the detailed application of law without violating ‘principle of no taxation without law’ is needed not infringe the interests of taxpayers.

comprehensive gift regulations, gift tax, anomalous gift, the theory of interpretation