제 2차납세의무제도의 위헌요소

The secondary tax payment obligation system, as an exception to the normal tax collection procedures, is a system whereby the tax liability of an original taxpayer is forced to be transferred to a third party. Therefore, this system must be enforced carefully so as not to violate basic idea of tax legislation principle as well as to minimize breach of fundamental rights secured in the constitutional law of Korea. However, even if the current regulation has validity in some aspect, it has still a lot of issues in terms of its contents and nature when it is reviewed closely. First, to impose a business transferee who has remote personal relationship with a secondary tax payment obligation would end up with transfer of the tax liability without legitimate basis since the forecast ability for the tax burden is not readily possible. It is also not different in that the secondary tax payment obligation is imposed to the spouse and his or her direct and collateral lineal of families who are leading same livelihood together. Meanwhile, articles of law must be clear enough to have one single meaning in terms of interpretation for both the tax administration and taxpayers so that the law can be enforced consistently without causing any misunderstanding between taxpayers and the tax administration agency. However, the more rearrangement or streamline of articles would be required with regard to the basis for the calculation of tax burden for the person who will bear a secondary tax payment obligation among major shareholders and their prioritized sequence to assume the secondary tax payment obligation and the definition for the packaged transfer. In addition, I think the secondary tax payment obligation of a liquidator can be eliminated from national tax basic law since the corporate tax law separately provides a “joint tax payment obligation” for the liquidator.