지방세법상 취득과 조세법상 차용개념에 대한 소고

In a recent precedent, a local government agency imposed acquisition tax twice on a building owner upon issuance of approval applying derivative acquisition tax rates on a finding that the building owner takes tax burden upon the agency’s issuance of approval even though the owner had already paid acquisition tax upon issuance of temporary approval while the building was held in co-ownership which was later severed. The agency held that changing of building owner’s name constitutes derivative acquisition in tax law and the building owner is obliged to take tax burden without exclusions upon the agency’s issuance of approval. However, in case of mere changing of a building owner, we could find no formal acquisition in civil law. The concept of acquisition drawn in the Local Tax Act is substantially broader than in civil law, since acquisition in the Local Tax Act implies both service tax and transaction tax. But in order to impose tax burden to the taxpayers under the Local Tax Act, we must analyze the concept of taxable objects according to an adequate standard which must be set up on a reasonable ground. The statutory requirement of the Local Tax Act is substantial acquisition such as an acquisition by transfer of title (legal registration action on public ledger) or the complete payment of purchasing price. However, in the stipulated facts, we could find no acquisition under either concept of the formal acquisition or the substantial acquisition. Nor did the case meet the statutory acquisition, such as the rules for specific taxes. Given the ruling of the agency, it must have interpreted the concept of derivative acquisition without consideration in a way different from that was taken under civil law. However, according to the ‘Substance over Form Doctrine’, we could find no derivative acquisition without consideration in this case, either under the legal substance theory, amended legal substance theory, or economic substance theory. Also, we could find no derivative acquisition without consideration as long as the agency interprets the borrowed concepts in tax law from civil law in accordance with the ‘uniform legal system’ approach or the ‘unity of the legal system’ approach. Accordingly, it might be an abuse of discretion for the agency to impose tax on a taxpayer finding derivative acquisition without consideration, because such interpretation is so arbitrary and capricious. Such an arbitrary and capricious action of the agency can be rectified by diligently clarifying reasonable grounds or adequate consideration of the circumstances for each ruling. This way, the agency could prevent its officers from abusing their discretion and protect the taxpayers’ rights. Most of all, the agency’s obligation to articulate the rationale behind the ruling must be urgently and clearly formalized in legislation.