과점주주 간주취득세의 이중과세 여부 및 자진 신고납부행위의 효력 ―대법원 2009.4.23. 선고 2006다81257 판결을 중심으로―

There is a system of taxation of legal fiction of acquisition on oligopoly shareholder in a private corporation in the local tax law because oligopoly shareholder in a private corporation acquires management & disposition on the assets of the relevant corporation and should be considered to acquire the assets of the relevant corporation. Arguments have been posed on it that it is economically double taxation and should be abolished. Recently, the Supreme Court ruled that double taxation of legal fiction of acquisi- tion tax was admitted. In this ruling, the tax was admitted to be double taxation but claim for restitution of unjust enrichment was disapproved because voluntary reporting&payment did not have a significant, evident flaw. The purpose of this study is to analyze whether the conclusion is appropriate in view of the existing judicial precedents or theories, and the results are as follows. First, the subject ruling cannot be overanalyzed because double taxation was admitted on the specific condition that the oligopoly shareholder acquired all the assets based on the methods of business transfer. Second, the ruling retained the existing mainstream view that double taxation is interpreted to be invalidity only when the taxation condition is a deficit or there are some specific reasons needed for remedying despite significant fault and misconception in matter of facts or simple overpayment can be considered reasons for cancellation. Then, the Court ruled that the case was not null and void on the ground that there was misconception in matter of facts and the matter of facts should be accurately investigated for its judgement. This conclusion may be appropriate, but there is some undesirability, given taxpayers who are not restituted of their overpayment as null and void was not accepted.