소득세법의 주요 쟁점에 관한 판례의 조명과 동향

초록

In this paper the author analyzed 4 major legal cases of the Income Tax Act since the full fledged revision in 1974, which are one Consitutional Court Decision and 3 Supreme Court Decisions. Constitutional Court 2002.8.29. sentenced 2001Heonba82 Decision confirmed the principle of income taxation on an individual rather than on a marred couple or a household in terms of the taxable unit. The main reason for the taxation on a marred couple or a household held by the challenged provision of the ITA was to prevent a tax avoidance through name borrowing among family members. The decision found the provision was unconstitutional in that it discriminated marriage and family without sufficient reason. However, it did not show any in-depth analysis on whether a consumption unit like a family has to become the taxable unit for the income taxation under the ‘ability-to-pay principle’ or not. As for the taxable object for the income taxation, the decision for the so called “Yen Swap Deposit Case”(Supreme Court 2011.4.28. sentenced 2010Du3961 Decision) lets us remind of the limitation that the so called “comprehensive provision for a class of income” which was introduced to overcome the shortcomings originating from the “principle of enumeration of income” for individual income taxation has. The wording of “similar” should have been understood as having the more comprehensive meaning than what the Court had in mind. The “Step Transaction Principle” under the Article 14 Paragraph 3 of the Basic National Tax Act, which was introduced in late 2007, may give a breakthrough in this regard by letting us find the economic substance of a transaction and apply the tax laws to it. According to Supreme Court 2014.7.24. sentenced 2011Du14227 Decision, the term of “substantial transfer for consideration” of a property, which constitutes the requirement of “sale” of a property for the taxation on capital gain, can embrace the case when the seller has received the full consideration in return for the land and is not likely to be asked to return it to the buyer even though the buyer has not gained the legal ownership of the land because the buyer has not obtained yet the permission from the local government on their transaction and therefore the contract between them is still void but only has the possibility to become effective on procuring the permission. By showing that the terms “substantial transfer for consideration” do not necessarily require a legally effective contract at all, this decision has broadened the interpretational possibility in case of such an original tax concept like “substantial transfer for consideration”. There was Supreme Court 2006.4.20. sentenced 2002Du1878 Decision which granted the Notice of Income Attribution to a corporation a qualification as an object of lawsuit. However, the individual attributee of the income other than the corporation itself is not able to challenge the illegality of the Notice to the corporation. And he may not challenge another Notice of Income Attribution to himself, either. Supreme Court 2014.7.24. sentenced 2011Du142278 Decision confirmed the latter principle. The decision conforms to the purpose of the Notice of Income Attribution to income attributee. The tax liability of an individual for global income is formed in the year when the payment of income was actually made. And then the tax liability is assessed through either filing a tax return to the tax officer by the taxpayer or notifying a deficiency to the taxpayer by the tax officer. On the other hand the withholding tax liability of the taxpayer is formed and automatically assessed by the Notice of Income Attribution sent to the corporation(the virtual payer). The income tax on the same bonus whether it is legal or illegal is able to be assessed through multiple channels. The Statute of Limitation for Assessment begins the next year of the year of the actual payment while the withholding liability is formed at the time when the Notice is delivered.

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