지방세법과 조례의 효력 우선순위 및 소급과세의 예외적 허용에 관한 고찰― 대법원 2011. 9. 2. 선고 2008두17363 전원합의체 판결 평석

This Article reviews a decision rendered on Sep. 2, 2011, by the Supreme Court of Korea(“Subject Decision”). Local development tax(“LDT”) was newly introduced against nuclear power generation in the amendment of national local tax act at the end of 2005, wherein most taxable requirements were stipulated with an exception for the regions covered by LDT which were delegated to the relevant municipal ordinance. Based on the amended local tax act, is it legitimately possible for the relevant municipal government to levy the LDT from the effective date of the amendment(January 1, 2006) even though the municipal ordinance was amended on March 16, 2006? There has been much controversy on the issue for a long time. One view is that national local tax act does not directly bind the municipal residents(“A View”), whereas the other view is that it may directly bind the residents even in the absence of the corresponding municipal ordinance(“B View”). The appellate court decision of Subject Decision took A View resulting in rendering the revised municipal ordinance invalid as retroactive. In the Subject Decision the Supreme Court made the same conclusion only based on the lack of one of the taxable requirements(the region covered by the LDT) in the revised local tax act, without explicitly stating the recognition of A View. Furthermore the Subject Decision ruled that the municipal ordinance does not pass the judicial test of exceptional requirements for the resulting retroactivity to be effective. This Article first reviews the controversy on the conflicting Views, and then opines that A View shall prevail as stated in the appellate court decision. It's quite skeptical, however, to attack the Subject Decision not only because the revised local tax act looks evident in respect of the lack of the taxable requirement, but because it's longstanding judicial tradition to refrain from stating unnecessary reasoning in solving a concrete case. Notwithstanding, it's regrettable, in my view, that the Subject Decision lost a good chance to affirm the autonomous tax power of the municipal govern ment empowered by the Constitution which could have been established by taking A View. Ruling out the relevant municipal ordinances from the judicial test of the exceptional requirements for the retroactivity musters little skepticism in light of the underlying policy(reliability and predictability of the taxpayers) as well as the judicial tradition.