실질과세의 원칙의 내재적 한계에 대한 小考

This paper suggests the alternative approach about intrinsic limitation forsubstance-over-form in the tax law. In general,a taxpayer chose substance,and made a form of transaction.If a taxpayer construct paradoxical matters inthe“substantial taxation”issues, did the taxpayer assert the application of theprinciple of substantial Taxation?This paper consists of 3parts. The First part explores Korean representativecases including 95NU18383, 2010DU23644, and 2006DU14865. Past cases’solution isbasedon the Bona Fide Principle of Tax Law, but some justicesmade other solutions focused on Substance-over-form Principle.The Secondpart is about the analysis on judicial decision standards of U.S. FederalCourts. It examines major 4 standards like the consistency of duty, theDanielson Standard, the Strong Proof Rule, and the Weinert Standard. Lastpart is about new paradigm of the intrinsic limits for the Principle ofSubstantial Taxation in tax law. This part makes a new logical stream fromintrinsic limits for Substantial taxation. A new logical stream is focused on‘theeconomic effect’dynamics (‘the ability-to-pay’dynamics) and the true nature ofthe Principle of Substantial Taxation. Specially, It suggests to observe a taxpayer’s external intent. In order to dothis, we need to scrutinize the chronological pattern of a taxpayer’s activitieslike the Weinert standard. This approach can make us analyze the subjectivefeature of a taxpayer for the application of the Principle of Substantial Taxation.