2008년도 조세 관련 헌법재판소 결정례 회고

The present study dealt with the 16 cases of the resolutions of taxation, resolved by South Korea’s Constitutional Court in 2008, in temporal order. Particularly 3 cases, such as Article 5 of the former ‘Comprehensive Real Estate Holding Tax Act’, Article 43－(3) of the former ‘Income Tax Act’ and Article 18－(1) of the former ‘Inheritance Tax Act’, were ruled unconstitutional or constitu- tional discord. In connection with the first resolution (Nov. 13, 2008；2006－Heon－Ba－112), the Constitutional Court judged the comprehensive real estate holding tax, added up according to households, is against Article 36－(1) of Constitution of the Republic of Korea. In result, Comprehensive Real Estate Holding Tax Act was amended. In connection with the second resolution (May 29, 2008；2006－Heon－Ga－16 ；2007－Heon－Ga－14), the Court judged that the cases, where the real estate rental income tax is uniformly calculated on the basis of the income of the representative joint businessman, came under overtaxation. In April 27, 2006 (2004－Heon－Ga－19), the Court ruled that a case of the business income tax was unconstitutional in line with the same logic. In connection with the third resolution (Oct. 30, 2008；2003－Heon－Ba－10), the Constitutional Court judged that the refuser of inheritance should be included in the obligors of inheritance tax even before the amendment of the act. The Supreme Court (Feb. 12, 2009；2004－Du－10289) made an opposite inter- pretation, but the judgment of the Constitutional Court is considered reasonable because the tax obligor and the inheritance tax can be clearly interpreted. Out of 16, the 2 cases of the resolutions of the Constitutional Court need to be reviewed. The resolution of April 24, 2008 (2006－Heon－Ba－72) coincided with the major interpretation based on the narrow prerequisite to a trial, but needs to be reviewed in order that the rights of tax payers may be protected and they may get wider opportunities. Also the proportion of the cases, rejected by reason of the absence of prerequisite to a trial, need to be checked to lay a course of improvement. The resolution of November 13, 2008 (2006－Heon－Ba－112, etc.) reflects the resolution of August 29, 2002 (2001－Heon－Ba－82) and that of May 26, 2005 (2004－Heon－Ga－6) that ruled the relevant act unconstitutional for the reason that it is against Article 36－(1) of the constitution. Even if it were so, the household-based real estate holding tax, ruled unconstitutional, needs to be reviewed in consideration of the particularity of the housing market. Outside of that, there is room for legislative improvement among the acts ruled constitutional by the Constitutional Court；to give examples, Article 13－(2) of Framework Act on National Taxes that narrow the gap between the interest rates of additional refund and additional charge and directly regulates the interest rate of additional refund, and Article 98 of Income Tax Act that minutely stipulates the time to transfer or acquire assets.