세법해석 사전회신(Advance Ruling) 제도의 도입 방안

Current tax ruling system has failed to provide the consistency in inter- pretation of tax laws or predictability of tax administration at a level that taxpayers wish and just played a role in confirming sketchy rules of tax authorities. Thus the Korean economic community is voicing its opinion that Korea also should introduce the advance ruling system as other countries. This essay outlines the advance ruling system of the U.S. and Japan, examines several issues to arise from introduction of such system and suggests ways to introduce the advance ruling system that would fit into Korea’s realities. In particular, the key issue primarily examined in this essay is a binding force imposed on tax authorities, which is a key to the advance ruling system. Since Korea has never imposed such binding force of the advance ruling system on tax authorities, without any serious thoughts on the said issue, the advance ruling system will not have any systemic conformity with current tax administration and tax litigations and may not make a soft landing in practice as an advance remedy. The issue of such binding force can be divided into four：　ⅰ) whether legal grounds for such binding force should be provided for in the Basic National Tax Act；ⅱ) how concrete details and extinguishment requirement of such binding force can be constituted based on legal principles；ⅲ) whether in terms of such binding force’s effects on third parties a third party other than claimants for advance rulings can claim application of such advance ruling into his/her case based on equality principle and non-taxation practices；ⅳ) In order to subs- tantially enlarge the scope of entities which are subject to such binding force, how the Ministry of Strategy and Finance other than the National Tax Service can be gotten involved in the issuing of advance rulings. If ways to introduce the advance ruling system in Korea is to be examined with a focus on such binding force-related issues, we believe that legal grounds for the advance ruling system should be provided in not by basic and general rules but by the Basic National Tax Act and more concretely, they should be aptly located in “Chapter Ⅶ-2 Taxpayers’ Rights thereof”. In addition, concrete details of such binding force should be provided to the effect that “after an advance ruling has been issued, less favorable disposition than such ruling shall not be made for taxpayers”. And for the purpose of securing taxpayers’ sincerity and dealing with changes in situations after issuance of such advance ruling, in case of certain events, such binding force shall be retroactively applied or shall be denied in the future. In our opinion, a third party other than claimants for advance rulings cannot claim application of advance rulings to his/her case on the basis of equality principle or non-taxation practices. Furthermore, in order to substantially expand the scope of entities which are subject to such binding force, in case of certain events, Commissioner of the National Tax Service should request Minister of Strategy and Finance to interpret statutory provisions or the National Tax Service and Ministry of Strategy and Finance should hold a joint deliberation committee to issue an advance ruling, which could unify positions of the said organizations on one hand and prevent misinterpretation of facts or of legal principles arising during the course of issuing advance rulings on the other hand. Other than the above issues, we dealt with several other issues on the advance ruling system together and suggest the concrete ways to introduce such system into Korea. We wish this essay will contribute to facilitating various and in-depth discussions on ways to introduce the advance ruling system and further to building the effective system.