실질과세원칙과 거래의 재구성―국세기본법 제14조의 해석론을 중심으로

Where taxpayers attempt to avoid the application of unfavorable tax laws by adopting circuitous transactions with identical economic effect arise the issues of whether to recharacterize the transactions into taxable one and how far such recharacterization is allowed by the tax laws. In principle, the transaction mode used by taxpayers shall be respected in tax purpose, for general introduction of recharacterization will lead to serious impairment of taxpayers’ predictability or legal certainty. However, when a specific transaction mode used by a certain taxpayer is deemed to be misuse of the taxpayer’s choice, such transaction shall be subject to recharacterization for the realization of fairness of taxation. Thus, taxpayers’ predictability or legal certainty should be inevitably limited within the appro- priate range. Recharacterization shall be carried out carefully so that the balance between achieved tax fairness and deteriorated legal certainty can be sustained. In that regard, following requirements should be needed to approve recharac- terizing taxpayers’ circuitous transactions. First, the taxpayers’ intent of tax avoidance shall be their sole or main motive of the transactions. Second, there has to be a means of tax avoidance for the transactions. Last, the tax avoidance in the transaction needs to be examined from the view of tax laws. Once achieving above requirements, detailed facts and circumstances in each case are to be taken fully into account and deliberately appreciated.