제재적 조세로서 기업소득 환류세제에 관하여

The purpose of the paper is to discuss the corporate accumulated earnings tax(hereinafter referred to as “CAET"), which has been adopted as Article 56 of the Corporate Tax Act and has been in effect since 2015, as a specified “tax penalty" and to suggest how the normative limitation to the “tax penalty" is applicable and what its results will be. CEAT, that will be effective until December 31, 2017, is the 10 percent additional levy on corporate income if the use of corporate retained earnings in the form of facility investment, wage increase and dividend payments fall short of a certain portion of corporate income for the concerned year. CEAT has been introduced as one of 'Three Packages for Boosting House Income' aimed at establishing a virtuous circle between corporate earnings and household income, with a view to enhancing investment and spurring lackluster private spending. Many scholars and entrepreneurs argue that CAET is a “tax penalty" because it actually penalizes the large corporations that have been criticized by politicians for not spending their earnings enough to spur the domestic economic growth. The paper argues that CAET should be interpreted as a “tax penalty", considering that certain corporate taxpayers are indiscriminately levied based upon the facts that they have accumulated their earnings, not spending surplus money in the manner designated by the law. By applying the general constitutional criteria to evaluate whether CAET oversteps the normative limitation of tax, it is hard to determine that CAET is too excessive or that it infringes upon the relevant constitutional principles. However, there are some legislative problems on CAET. The 2014 tax reform, including CAET, had been devised to transform the Korean tax system as a pillar of national fiscal policy, playing an active role in boosting domestic demand. However, CAET has not proven so far that its introduction has any positive effects on boosting household income. The levy may be even discriminatory to corporations involved in overseas investment and equity investment as these types of investment are not the 'investment' deductible. Moreover, CAET imposes additional corporate tax burden on the corporations which should not be condemned for failing to satisfy its requirement. In conclusion, taking into account the legislative legitimacy of CAET and its suitability as a means to pursue the policy goal, it does not seem to be too excessive, but it does have certain defects in legislation, imposing additional tax burden on corporations and wielding a fair amount of influence on taxpayers' business decision-making. CAET is not a solution for our economy. If anything, it is a “tax penalty" that operates as a sanction against corporations even when accumulated earnings are necessary for its business survival.