소득세법 제43조 제3항의 입법적 문제점 및 개선방향 - 관련 헌법재판소 판례와 비교분석을 중심으로 -

In recent The collection of objective levy material is very easy to owe the rapid progress of payment devices like credit cards and the enforcement of the Real named Registration system on Real Estate and Finance. But tax avoidance problems are still in existence because the transaction between particular relations like a blood relative is able to settlement as their designs in case there is no clashes of interests. So our taxation system correspond to tax avoidance with denial of unfair bargains, fiction, presumption on the transaction between particular relations. Income Tax Law Article 43 Clause 3 prescribes to fictionalize the income of particular relations as the income of main partner who has the biggest distribution of profit and loss in case there is particular relations in partnership and a deceit distribution of profit and loss. There was already unconstitutional conclusion on the Income Tax Law Article 43 Clause 3because “there was high possibility of irrecoverable damage for taxpayer not to give a counterevidence chance which is free from tax liability through proving no intention tax avoidance by partnership”. The Income Tax Law Article 43 Clause 3 in force was amended by the unconstitutional conclusion. But there’s still necessity legislative solution because the amendment which still includes unconstitutional problem doesn’t aid for the policy of anti-tax-avoidance and revenue increasing by discordant amending to the reason of unconstitutional conclusion. Therefore The Income Tax Law Article 43 Clause 3 in force must be amended a presumptive provision. So the provision is accord to The constitution and the idea of the substance over form by levying substantial income which is proved distribution of profit and loss by taxpayer’proof.