2010 Fiscal Year Final Research Report
Research on the Legal Theory of Non-Recognition for Preventing the Abuse of Non-Recognition Provisions on the Real Estate Property
| Project/Area Number |
20530027
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Public law
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| Research Institution | Takushoku University |
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Principal Investigator |
ABE Yukiko Takushoku University, 商学部, 教授 (50299814)
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| Project Period (FY) |
2008 – 2010
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| Keywords | 課税繰延べ / 所得概念 / 所得の実現 / 認識 / non-recognition / 投資の継続性 / 取得価額の引継ぎ / 効率性 / 公平性 / 税務執行 / 租税回避 / 組織再編税制 / 土地税制 / 同種要件 / 保有目的要件 / 交換用件 / safe harbor rule |
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| Research Abstract |
This research analyzed the issues on non-recognition provisions on sale or exchange of real estate property in Japan, comparing it with the Federal Income Taxation . Because the non-recognition provisions on sale or exchange of real estate property have been considered only as a political measure for a long time in Japan, it has hardly been discussed from the legal point of view.
First, the study explored groundings for the non-recognition provisions on sale and exchange of real estate property, reviewing a number of judicial precedents in the US. Continuity of investment was confirmed as the rationale for the deferral of taxes on sale and exchange of real estate property, as was for corporate reorganization. Second, the requirements for the application of non-recognition provisions on sale or exchange of real estate property were theoretically examined from the point of continuity of investment in order to prevent abuses of non-recognition provisions.
The discussions suggest the followi
… More
ng revisions of the current taxation in Japan :
1. The test of like kind of real estate property should be more strictly defined in terms of continuity of investment because requirements of sale or exchange of real estate are quite loose under a special treatment of the current income tax law, section 58. The tax requirements will be more limited if the criteria used in the current property depreciation rules of personal property are applied as an alternative standard.
2. Regarding the requirements of exchange under the tax special treatment rule, section 58, some clear rules should be provided. For instance, the property replacement must be identified within 45 days and received no later than 180 days after the taxpayer's transfer, which is included in Federal Income Taxation "Safe Harbor Rule."
*The result of this research is to be published by Chuokeizai-sha, Inc. in July, 2011, under the title of "Tax Theory on the Sale or Exchange of Property" with the grant from Takushoku University Research Institute. Less
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