국세기본법에 따른 실체법․절차법 체계하에서 정확한 담세력에 따른 과세를 어디까지 추구할 수 있는가?

This article discusses 9 selected decisions rendered by the Supreme Court of Korea, all of which deal issues that are, broadly speaking, associated with the Korean Basic Framework Act on National Taxes to a certain extent. This article has selected these 9 decisions, all of which were rendered after the turn of the century, taking into account their respective theoretical or practical importance in tax law. It is noted that, in each of those 9 decisions, the Supreme Court of Korea was confronted with a choice as to whether it should pursue “accurate taxation,” i.e. taxation based on exact amount of income or other tax base, or respect certain legal doctrines that collides with the idea of “accurate taxation” in search of other legal values in tax procedures or tax law. For example, in one of the foregoing 9 cases, the taxpayer devised an artificial arrangement to minimize its local tax burden, which was subsequently challenged by the tax authorities, and the Supreme Court had to decide whether to disregard the foregoing arrangement for “accurate taxation,” or respect the legal form to protect such values as legal certainty and taxpayer’s predictability. In another case where the taxpayer had received bribes and been taxed thereon, but suffered forfeit thereof as a result of the criminal proceeding, it was disputed whether the taxpayer was entitled to a refund of the tax paid. The idea of “accurate taxation” would arguably dictate such a refund be permitted while the value of legal certainty under tax procedures would bar the taxpayer from revisiting the issue of his tax liability that had already been duly established. It is submitted in this article that the Supreme Court has more often than not upheld the idea of “accurate taxation” over other legal values of tax procedures or tax law. It is also noted that the Supreme Court, albeit in much fewer cases, did hold that the pursuit of “accurate taxation” should be compromised in respect of other legal values. Nevertheless, this article also suggests, in this regard, that such decisions should be made through more principled reasoning on which legal values should be upheld to block the idea of “accurate taxation,” and when.