세법상 유추의 可否에 관하여

The result of the discussions on whether analogy is allowed under the tax laws can be summarized as follows：First, since the essence of the issue of whether analogy is allowed under the tax laws is a conflict between legal stability and justice, whether or not analogy is allowed under the tax laws should be determined not based on the interests of taxpayers as argued by the existing conventional theory or the recent judgment by Seoul High Court but based on the balancing between legal stability and justice. Second, with respect to the balancing between legal stability and justice, since the tax laws do not prohibit analogy as the criminal laws do, analogy could be made, but the scope of the analogy allowed is not as wide as under the civil laws. Therefore, it can be said that the analogy under the tax laws is located somewhere between the criminal laws and the civil laws and the specific location should be determined case by case by a judge based on the balancing between legal stability and justice. Third, the provisions regarding interpretation of the tax laws under the Basic Act on National taxes allow the possibility of analogy based on the balancing between legal stability and justice. Fourth, the substantial taxation based on the economic substance under the Basic Act on National Taxes is the same as the taxation by analogy. Fifth, the Supreme Court actually makes analogy unfavorable to taxpayers while expressly describing “application by analogy" and in principle, does not allow analogy favorable to taxpayers. Therefore, whether from the perspective of legal theories, of norms and of substance, it can be said that analogy is allowed under the tax laws. Meanwhile, the result of the discussions on the recent judgment rendered by Seoul High Court based on the balancing between legal stability and justice can be summarized as follows：First, if Article 100(2) of the Income Tax Act is not subject to application by analogy, it can secure legal stability though it is against justice from the perspective of taxation. If Article 100(2) of the Income Tax Act is applied by analogy, it undermines legal stability while it is still against justice from the perspective of tax exemption. Therefore, whether Article 100(2) of the Income Tax Act should be subject to application by analogy causes a special problem where the justice from the perspective of taxation and the justice from the perspective of tax exemption conflicts with each other. Second, the fundamental reason that such conflict occurs within the principle of justice is that the scope of “similarity" is different in connection with the effects of application of Article 100(2) of the Income Tax Act. Third, the reasonable interpretation is to “apply Article 100(2) of the Income Tax Act by analogy," and at the same time, to make “teleological reduction" by setting up a limitation that the taxable capital gains shall not exceed the total capital gains in connection with the result of the proportional calculation. This is, in the end, combination of analogy and teleological reduction.