미국의 소급과세입법에 관한 법제와 판례 연구- 소급과세입법의 헌법합치성 판단기준을 중심으로 -

It is quite common for Congress to enact tax legislation that applies retroactively in the United States. Congress would like to enact retroactive tax legislation because (1) an interest in finding new sources of taxation can encourage making a provision retroactive in order to increase tax revenues; (2) an ever-growing number of tax provisions have expiration dates and some may not be extended in a timely manner; (3) an intent to influence behavior by means of a tax provision can sometimes include a desire to penalize past conduct. It is clear there is no absolute constitutional bar to retroactive tax legislation in the United States. Furthermore, taxpayer’s reliance alone may be insufficient to establish a constitutional violation. Nevertheless, it is possible for retroactive tax legislation that increases a taxpayer’s liability to violate constitutional provisions, such as due process, ex post facto, takings, bill of attainder, or equal protection. This article deals with issues on the constitutionality of retroactive tax legislation. For this purpose, statutory provisions and legal theories about retroactive tax legislation in both U. S. and Korea will be reviewed. Firstly, this paper makes a diagnosis of legal systems and judicial precedents about retroactive tax legislation in Korea. Secondly, constitutional provisions and cases about retroactive tax legislation in U. S. are analyzed. Lastly, this paper indicates some suggestions from constitutional provisions and cases about retroactive tax legislation in U. S. for legal systems and judicial precedents about retroactive tax legislation in Korea.