금융상품을 이용한 tax shelter의 현상과 과제 - 미국의 tax shelter 개념과 경제적 실질원칙을 중심으로 -

초록

An income earned by an individual in Korea is only taxed when it conforms to a taxable item of income as enumerated in the Income Tax Act (“ITA”). Not a few conflicts are arising between the tax authorities and the taxpayers. In this regard, four representative taxation cases during the last decade have been analyzed and legislative suggestions have been made accordingly in this study. In the “Yen Swap Deposit” case, the alternative transaction argued by the tax authority as an ordinary transaction which should have been taken by the deposit holders may not be compelled without proper individual tax law provisions. Therefore, the transaction may not be disregarded or reconstructed by applying the “tax sham transaction” and “unfair tax benefit” concept. In the “Bond Discount” case and the “Gold Banking” case, the transactions made by the taxpayers have economic substance and were not pursued for the single purpose of tax avoidance. Lastly, in the “Stock Lending” case, if the principal purpose of the stock lending were found to be avoidance of taxation on the capital gains, the court should have decided that the stock lending transaction be disregarded and accordingly the capital gains fall under taxation. To prevent these types of tax avoidance, first, the introduction of “comprehensive income” in full scale will be the most effective way to realize the equitable ability-to-pay taxation under the ITA. Second, Article 14 of the National Tax Basic Act (“NTBA“) has to be amended to define the term “economic substance” and to disregard transactions with little or no economic substance for tax purposes. In addition, we need a provision which stipulates that the tax officer may designate a transaction concluded mainly for the purpose of obtaining tax benefit, which an ordinary man would not have selected for the attainment of economic objective, as a tax avoidance transaction.

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