기업조세의 법형식 중립성 원칙

This paper aims to explore whether the existing business taxation method is appropriate or not, which is recently issued as the business forms are getting more diverse. As the range of business activities is expanded to the world, new types of business entity more often access to domestic market, so recently the taxation method becomes controversial. A previous taxation system seemed to be simple because it has accessed the corporate income tax or the individual income tax, just according to the existence of incorporation. As the business entity, applied by a partnership taxation expands to domestic market from U.S. and so on, it is hard for the government to find a legal basis to impose tax. As a result, the government introduced "Partnership Taxation" to the business income taxation, which can be the way to deal with the diversification of business forms. Partnership Taxation, however, could not solve the matter of neutrality among the various business forms, because it was vertically focused on solving the problem of double taxation between the investors and corporation within a single corporation. That is, as "Partnership Taxation" is applied only to the limited, unlimited company and the certain type of incorporated companies, the discrimination has emerged, so some forms of business entity should pay the individual income tax, while others pay the corporate income tax, only due to the difference of business form.Of course it is understandable the government's intention to restore non－incorporated firm, which has not been popular under the previous Korean business law. However, it is not justifiable for the taxation system to concentrate tax favors on the certain type of business entities, and it would make a constitutional problem violating an aspect of equal taxation. Taxation should be neutral among business forms. That means, the taxation system should not provide taxpayers to some reasons of unfairly reducing their tax burden, by choosing one among those various business forms. There is a discussion from the view of the business law, saying that various business forms are necessary for business profit. That can be shown as the logic that the tax law has to be applied for corporation’s profit. However, people should consider the possibility of ultimate principle of taxation can be applied regardless of the business forms, from the aspect of systemicity of tax law, a principle of constitution and the equal distribution of tax burden. The field of corporate income taxation is a kind of complex one. Vertically, there is a problem of double taxation within a single corporation, and horizontally, there is also an application matter of an equal taxation in a competitive market. Those problems seem to be hardly solved when they are dealt with from a single aspect. If so, that can aggravate the neutrality of taxation. In case of a recently introduced "Partnership Taxation", it particularly gave tax favors on the forms of limited and unlimited company so it damaged to the neutrality of taxation. Fundamentally, the business taxation should be neutral to the forms of law(types of business entity). Therefore, the request for the neutrality of taxation requires legal judgement according to a constitutional value；efficiency and equality. Efficiency, fair competition and request for the equal taxation are basic principles that should be based on when lawmakers set up the taxation system, and are standards of legal judgment. If a certain taxation system violates the above rules excessively, it would be unconstitutional one that infringes the human rights. Of course people should not judge the system unconstitutional, just because it is inefficient or unequal. It should be judged carefully by considering whether it is reasonable difference or restriction. This paper emphasizes on the fact that the complicated problems of the business taxation will be never solved with the existing income taxation system. Therefore, I would like to suggest a new approach as an alternative－ the business taxation based on consumption type or the consumption based taxation. Their main notions are as follows. First, we should unify the existing proprietor's income taxation and the corporate income taxation to just one business taxation. The simpler the taxation system is, the better it will be because separated individual income taxation and corporate income taxation cannot solve the fundamental problems of the business income taxation. Second, the unit of taxation should be based on the entity level. That means the entity taxation is more necessary than the pass－through(conduit) taxation, because the taxation system, which is directly applied to(pass－through) investors, cannot solve the matter of neutrality among the various business forms. Third way is imposing tax only one time with a single tax rate(flat tax). That means, investors do not have to pay tax accessed on their income from dividends. As the corporation tax is a social cost, the little the corporation tax becomes, the better it will be. Fourth, the existing income taxation system should be switched to the income taxation based on consumption type. If a base of taxation is an income, the taxation will be essentially complicated, while if a base of taxation is a consumption, the taxation will be simpler and more efficient. The consumption－based taxation is a simple method to impose tax just by deducting savings(invests) from incomes. It can totally solve the problem of double taxation, imposed to the capital income.