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대한민국 국회는 2012년부터 일감몰아주기 증 여세제도를 경제민주화를 이루기 위한 일환으로 도입하였다. 이 증여세제도는 대기업들이 자회사 들에게 일감을 몰아주어 이루어지는 대기업일가 의 편법적인 부의 획득을 차단하려고 제정되었다. 본 기사는 일감몰아주기 증여세제도의 기본 조작, 위헌성 여부, 이 제도에 대한 국내 및 외국인투자 기업의 준비할 사항 및 이 제도가 외국인투자기업 에 미치는 영향을 논의한다. impact oF DeemeD giFt t ax FRoM “gIVIng exCeSSIVe WoRK” on FoReIgn-InVeS TeD CoRPoRaTIonS by dong-soo Kim dskim@yulchon.com Partner at yulchon LLC i. History of adoption of the deemed gift Tax regime Te National Assembly adopted the “deemed gif tax regime” as part of the gov- ernment’s eforts to achieve economic de- mocratization. It refects the government’s ef- forts to realize a fairer society and address the citizens’ anti-corporate sentiment. Te new gif tax regime attempts to eliminate large conglomerates’ practice of “giving excessive work” to their subsidiaries. Te new tax law introducing the deemed gif tax regime was applicable to transactions between conglom- erates and any related parties arising since January 1, 2012. Te new tax law was amend- ed during 2012 and the amended provisions became efective starting January 1, 2013. ii. basic operation of the deemed gift Tax regime A large conglomerate giving excessive work to a subsidiary owned by a controlling share- holder, who may be related (e.g., daughter, son, etc.) to the chairman of the large con- glomerate, increases the value of the subsid- iary (through increase in the subsidiaries’ revenues). Tis efectively amounts to trans- fer of wealth from the chairman to the related controlling shareholder and the deemed gif tax regime treats such a transaction as a gif. If, among the controlling shareholder and his/her relatives, an individual sharehold- er holds more than 3% of the “benefciary corporation,” they may be liable to pay the deemed gif tax. A corporation is labeled a “benefciary corporation” if it derives more than 30% of its sales from transactions with a corporation(s) related to the controlling shareholder (corporations in which the con- trolling shareholder can exercise control). Te deemed gifed proft of the benefciary corporation is then calculated by the follow- ing formula: Deemed gifed proft = Afer-tax proft of the benefciary corporation x (ratio of transaction between the benefciary corporation and the related corporation as measured by the per- centage of sales the benefciary corporation de- rives from the related corporation – 30%(*) x (shareholding ratio – 3%). (*) Apply 15% with fscal years starting af- ter 2013. Te taxpayer (the controlling shareholder) is considered to have earned the deemed gif- ed proft at the end of the of the benefciary corporation’s fscal year. Te taxpayer must A s s e t M A n A G e M e n t