세법상 법인격부인의 법리와 실질과세의 원칙의 관계

The legal principle of piercing corporate veil is a theory on corporation laws, and the principle of substantial taxation is mainly discussed as principle of tax laws. In the case of Korea, though there is no clearly based definition in the laws on the legal principle of piercing corporate veil, preceding rules by the Supreme Court clearly acknowledges the legal principle of piercing corporate veil and its conditions in the private law sector. The problem is whether the legal application of such piercing corporate veil in the private law sector should be applied. Introduction of such legal principle of piercing corporate veil must be reviewed for its feasibility in relation to the principle of substantial taxation and the ‘No Taxation without Representation' rule. This paper states the theoretical rationale of the private laws and tax laws on the legal principle of piercing corporate veil, and points out that the legal principle of piercing corporate veil on tax laws is different from the discussions on the private laws. When corporations are abused, restrictions on it is necessary for both private laws and tax laws. However, in the case of tax laws, when corporations are abused, restrictions for tax avoidance pursuant to the ‘No Taxation without Representation' rule are possible, and by applying the principle of substantial taxation, when it is difficult to levy taxes, the legal principle of piercing corporate veil on private laws can be extended to this. When taxation is made on this, it may disrupt the legal safety and predictability of tax payers, which would violate the ‘No Taxation without Representation' rule. When it is necessary to be taxed on the types of abuses made by corporations, it must be legislated in tax laws. From this perspective, the Supreme Court Decision of April 9, 2009 case number 2007 du 26629 doesn't permit taxing pursuant to the ‘No Taxation without Representation' rule for acquiring dormant corporations when esta- blishing corporations within metropolitan cities according to former provincial tax laws was feasible. The above decision is not a case in which the piercing corporate veil was applied as that of the claim of the tax payer, but even if there is a need to exercise tax rights, it is meaningful in the fact that it shows that the restrictions by the ‘No Taxation without Representation' rule must be observed. In the case that a mother company acquires the stocks of a company possessing real estate through its affiliated companies, the recent decision of the Seoul Administrative Court of November 11, 2007 case number 2007 guhab 5349 on whether to have the mother company recognized as an oligopoly shareholder applicable to the regulations on deemed acquisition of acquisition taxes pursuant to Article 138 paragraph 2 of the Provincial Tax Act, was positive in applying tax laws of the legal principle of piercing corporate veil according to private laws. However, in the case of the respective case, whether or not the principle of substantial taxation must be first examined, and when applying the conditions and its legal principle for application of legal principle of piercing corporate veil in the tax sector, under such conditions where there is no clear standards for taxes of mother companies and affiliate companies, there is a need to be cautious in applying the legal principle of piercing corporate veil. This is because it may result in problems with violating the ‘No Taxation without Representation' rule