국세기본법 제14조의 3항 적용기준 분석：배우자 증여 후 주식소각을 중심으로

초록

[Purpose]This paper presents the application process of the substance over form based on specific case precedents. In particular, it examines the application of rule of raw and the substance over form in the case of stock retirement following a spouse stock donation. Additionally, it discusses the implications and issues associated with the revised capital gains tax deferral regulations for the year 2025. [Methodology]This study introduces Article 14, Section 3 of the National Tax Basic Act, which is a contentious issue related to stock retirement following a spouse stock donation, presenting the perspectives of both the claimant and the tax authority. It analyzes the significance of the Supreme Court ruling in this context. Specifically, the consistency demonstrated in the case law concerning stock retirement following a spouse stock donation. It is highlighted, along with an examination of the implications and limitations of the amendments to capital gains tax. [Findings]Similar to other precedents, the court demonstrates a consistent approach in recognizing the legal formality according to the principle of tax law in cases of stock extinguishment following a spouse gift, barring any exceptional circumstances. However, in situations where the economic benefits are effectively attributable to a separate entity, or where circumvention or complex transactions are unlikely to occur outside of tax evasion purposes, the court permits the reconstruction of transactions based on the substantive taxation principle. This outcome signifies that the substantive taxation principle serves to complement the gaps inherent in the principle of tax law. [Implications]This study is significant in that it examines the criteria for the application or exclusion of Article 14, Section 3 of the National Tax Basic Act based on specific case precedents. Secondly, while the substantive taxation principle and the principle of tax law are theoretically complementary, the actual court rulings suggest that the substantive taxation principle is applied as a complementary measure to prevent the erosion of the principle of tax law only in cases where it is deemed to significantly harm taxpayer equality. Despite the consistency of these precedents, the codification of the one－year holding requirement for the calculation of necessary expenses in capital gains tax under Article 97－2 of the Income Tax Act for 2025 may raise concerns about the principle of tax law undermining the principle of tax equity, highlighting important policy implications.

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