조세평등주의와 응익과세의 관계에 관한 법적 고찰

Korean tax law theory has accepted that tax fairness as a constitutional principle equals the ability to pay principle without any discussion about the relationship between the benefit principle and tax fairness. Applying strictly the ability to pay principle, local tax such a residence tax is unfair and we can’t introduce the new tax form like Japan business tax that reflects the benefit principle. When we accept the benefit principle as a tax fairness, we can tax based on the criteria that is not business profit but business scales. In the benefit principle, benefits are not same as administrative costs. Taxpayer’s benefits can be divided into individual benefits, business benefits and property benefits. Although the measure of benefits is various, it is reasonable to measure benefits by the amount of consumption. It concludes that both the benefit principle and the ability to pay principle are involved in tax fairness as a constitutional principle. The relationship between both the benefit principle and the ability to pay principle is different by a governmental level. The ability to pay principle has the dominant position in central government taxes but the benefit principle has the dominant position in local government taxes. Reflecting the benefit principle in local tax law, the taxation system such as a person with liability to taxation, an object of taxation, tax bases and tax rates can be made by the kind of taxpayer’s benefits. But the benefit principle has some limitation that is to guarantee the rights for living and accept the tax as means of policy. In reviewing current local taxes based on the benefit principle, the property not related to taxpayer’s benefits from local government service is included to the object of taxation in acquisition tax and property tax. The tax rates applying to land and house are based on the ability to pay principle and not follow the limitation of guaranteeing the rights for living. The tax unit of an individual residence tax(equality part) doesn’t reflect the benefit principle. Local income tax reflect excessively the ability to pay principle in the calculation of tax base, tax deduction, progressive tax rates. We need to amend local tax legislations to realize tax fairness as a constitutional principle.