실질과세의 원칙과 ‘실질’ 판단에 대한 고찰

This paper explores controversies surrounding the fundamental tax principle of ‘substance over form’ coded in the Fiscal Code of Korea. In Korea, ‘sub- stance over form’ does not get clear with taxpayers and the National Tax Service. However, In 2012, the Supreme Court of Korea changed its position to apply the ‘substance over form’, and it also does suggest the more precise approach of ‘substance over form’ than the past. The paper examines basic or advanced problems of the ‘substance over form’ with the above decision as a momentum. The paper focuses on the contri- bution that it establish the reasonable concept of the ‘substance’ and the sham in tax law. Applying the tax principle of ‘substance over form’ to tax problems, and making reasonable legal solutions, these two concepts is treated as the most important factors. it analyzes Substance over Form Doctrine of the United States and Japan, related subset doctrines, and legal cases, in order to esta- blish the reasonable and persuasive concept of the substance. Based on the analysis, It proposes the definition of the substance and the sham in tax law：the Substance means that it is the economic substance of the conventional business form, and also the economic substance confirmed by a taxpayer’s economic basis. Based on the above concepts, It proposes a practical framework that finds the substance, which examines the subjective prong and the objective prong. Specifically, it suggests that we use the Sliding scale theorem to confirm the subjective prong and the objective prong. This method is based on one of legal nature of tax law, focusing on the ability to pay and the economic effect.