미국 소득세제상의 실현주의에 대한 고찰

In Macomber vs. Eisner (1920), the U.S. Supreme Court affirmed that the realization requirement should be one of the essential elements to form an “income” to which the federal income taxes might be imposed under the interpretation of 16th Amendment of the U.S. Constitution. Since the Macomber, however, the U.S. jurisprudence has persistently encroached upon the realm of the realization requirement in order to broaden the tax base and accelerate the moment of the taxation on the one hand and to restrict the tax evasion strategies based on the realization on the other hand. Notwithstanding the consistent refinement of the requirement, the basic realization concept has remained remarkably stable since the Macomber decision, and still takes its role as the longstanding limits of the full application of the Haig-Simon type accretion taxation. In this article, after exploring the Macomber decision and the post-Macomber history of the realization requirement in part II, part III reviews two critical tax issues closely related to the concept of the realization in both the U.S. and Korea, i.e., the direct-consumption tax and the mark-to-market taxation of the commodity future contracts. According to the proponents of the direct-consumption tax, the current income tax should be repealed and replaced with the USA tax or the flat tax both of which are based on the strictest application of the constitutional requirement of the realization in Macomber. On the other hand, the mark-to-market taxation of the commodity future contracts conceptually hinges on the complete exclusion of the realization requirement from the constitutional definition of the “income.” Through the controversies over the two separate issues, we can empirically comprehend that the income tax system, in the real world, should be a certain point of the two extreme ends of a continuum in terms of the realization. This article does not suggest whether to acknowledge the limits of the realization in the definition of the “income” for the income tax purpose. Instead, we have to strive for the golden medium of the two extreme ends taking every aspect into consideration on an issue by issue basis, and the only reliable standard for that job is the sound balancing of the efficiency and fairness.