귀납적 접근방법에 의한 이중과세(二重課稅)개념에 관한 소고(小考)

The term “double taxation” is frequently used in tax law. When it occurs, the adjustment procedure is necessary to realize the equality of tax burden principle. However, since the definition of double taxation is not clearly stated in tax law, we can only indirectly infer its concept from double taxation adjustment regulations. The purpose of this study is to deduce the reasonal concept of double taxation through Korea tax law, the Constitutional Court Decision, and the Supreme Court Precedent. Following is the list of common symptoms of double taxation application through Korean tax law, the Constitutional and the Supreme Court Precedents. First is the case both the objects of taxation and tax payment obligers are the same(Corporation Income Tax Law Article 57, Comprehensive Real Estate Holding Tax Law Article 9, Supreme Court Judgement 2003헌가11); second is the case that objects of taxation are the same but the obligers are different(Individual Income Tax Law Article 17 and 56, Corporation Income Tax Law Article 18－3); third is the step transaction case that denies the inserted transaction but preceding and following taxation are compatible. On the other hand, in the case that requisite for tax obligation, time and tax obligers are different, it is not considered as double taxation. Following is the reasonable concept of double taxation that this writer deduced through the inductive approach suggested above. First, double taxation is levied when the characteristic of taxation objects and the obligers are the same. Under this concept, the most ideal double taxation targets foreign source income of domestic corporation under Korean tax law. This case falls under the concept of double taxation and the adjustment process is necessary even though unavoidable taxation is levied due to different taxation bureau. Second, some of the cases that objects of taxation are the same but the obligers are different might be included in double taxation, but this is due to consideration of tax policy. In other words, the discretion of lawmakers can affect double taxation judgement. For instance, dividend income, which is widely acknowledged as typical double taxation, was not considered as double taxation under Korean tax law in the past. Third, for the step transaction case that retains the previously existing two transactions while denying the inserted transaction in accordance with the principle of substantial taxation, it is rational to consider it double taxation. Fourth, for the case that the tax obligers are different in the denial of transaction due to calculation by wrongful act, it is desirable to consider it not double taxation. Lastly, even the adjustment of double taxation is conducted after the judgement, the thorough adjustment is not corroborated by the constitutional law, but rather falls under the lawmakers’ discretion, since the full adjustment of double taxation is practically the abolition of a tax item.