계약해제시 양도소득세, 증여세, 취득세의 통일적 적용방법에 관한 연구

On the issue of the contractual rescindment's effect on the taxation claim of the capital gain tax, the gift tax and the acquisition tax, the Supreme Court has taken respective measures according to the respective tax items and the kinds or timing of rescindment. However, a unified application of law is more desirable under the current situation where no specific prescription in each tax law affirm the Supreme Court's such decisions, considering the rule of taxation based on taxable capacity, the legal effect of the rescindment in the private law, and the sections concerning the ex post request for correction prescribed in the current Framework Act on Local Taxes from Jan.1st, 2011, which was introduced after the Framework Act on National Taxes, prescribe the contractual rescindment as one of the reasons for filing ex post request for correction. The provisions related contractual rescindment which are respectively prescribed in the subsection 4 under the section 31 of the Inheritance Tax and Gift Tax Act, and in the section 20 of the Enforcement Decree of the Local Tax Act should not be considered to exclude the ex post request for correction from the gift tax and the acquisition tax. Consequently, it is reasonable to acknowledge discharge of the abstract tax liability arising from any kinds of rescindment before the statutory due date of return without the distinction of the capital gain tax, the gift tax and the aquisition tax. Furthermore, as for rescindment after the statutory due date of return, it is sound to decide whether the rescindment satisfy the requirements of the ex post request for correction prescribed in the Framework Act on National Taxes and Local Taxes and to determine later whether or not it can influence the taxation claim. According to this view, in application of the capital gain tax and the gift tax, which are the national taxes, into the issue of rescindment, the rescindment by law and the rescindment by contract stipulation made before or after the statutory due date of return and also the rescindment by mutual consent made before the due date can affect the taxation claim without limitation. But the rescindment by mutual consent made after the due date only can affect the taxation claim when the contract was rescinded due to compelling cause. With regard to the acquisition tax which is the local tax, while the rescindment made before the statutory due date of return can affect the taxation claim without limitation, the rescindment made after the due date can affect the taxation claim only when the contract was rescinded due to compelling cause in any kinds of rescindment without the distinction of the rescindment by law, the rescindment by contract stipulation and the rescindment by mutual consent. However, it is desirable to revise the Enforcement Decree of the Framework Act on Local Taxes to the effect that the local tax should not prescribe compelling cause requirement for the rescindment by law and the rescindment by contract stipulation as the Framework Act on National Taxes does not.