한국의 조세회피방지규정과 일반적 조세회피방지규정(GAAR) 도입방안

초록

The current substance taxation principle and SAARs are not so effectively functioning as anti-avoidance devices in the midst of creative avoidance tactics. The conservative courts also limit their potentials as such. The revision proposal for the Article 14 of the BNTA will render definitely affirmative effects but still leave lots of shortcomings unsolved in this regard. To solve these problems the government has to seriously think of the introduction of an outright GAAR provision in the BNTA which defines the concepts of ‘tax avoidance' and ‘unfair reduction', and provides for the tax effect of its application. An ‘abuse of right' type provision which is found in the German Abgabenordnung Article 42 or an ‘economic substance' type doctrine which is found in the judge made laws of the U.S. provide good examples for us. Due adaptation to Korean tax law system are recommendable in this regard. Abreast with the discussion of the introduction of the GAAR, we may as well think about the improvement of procedures for the execution of tax laws such as penalty tax, advance rulings, and burden of proof. They may help to alleviate unintended bad effects on the taxpayer protection as well as to strengthen the anti-avoidance rule. In this juncture the introduction of anti-aggressive tax planning system, the so called anti ATP system, i.e. tax shelter disclosure rule, may well be considered. According to the anti ATP system whose examples are to be found in not a few common law states, tax authority is supposed to announce the types of aggressive tax planning periodically beforehand, and the taxpayers are required to report such activities accordingly, in which case the penalty tax is reduced or exempt. Among the measures of the anti ATP system, some penalty provisions against the tax intermediaries and other provisions for supplementary purposes are also provided. The types of aggressive tax planning will generally fall under the GAAR if the latter is introduced in the BNTA. In this regard the joint introduction of the GAAR and the anti ATP system may increase of the effect of the introduction of GAAR as well as to alleviate its unintended bad effects on the taxpayer protection. The step by step application of the GAAR according to the methodology provided by the anti ATP system would serve for those purposes.

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