실질과세원칙의 적용과 관련된 최근 판례의 동향 및 쟁점

The Supreme Court of Korea seems to have set its position to take an economic substance doctrine by the ruling of 2008Doo8499 sentenced on December 19(hereinafter referred to as “the ruling”). If we look at the trends of cases since the ruling and before the end of 2016, we can see that the frequency of reconstructing the target transactions from the point of view of economic realities has increased rapidly. Therefore, the position of the Supreme Court of Korea, which was revealed in the foregoing ruling, has had a considerable influence on individual cases. In the case of some cases, the transaction is reconstructed quite boldly, so there may be side effects in terms of predictability of taxpayers. This predictability problem is expected to be mitigated by the accumulation of more cases. However, in the cases of some lower courts, the position of the Supreme Court of Korea prior to the ruling is still maintained, which can be understood as those pursuing concrete feasibility, but there is a problem from the perspective of fair taxation. In relation to the scope of the substance over form principle the following question may arise：whether the taxpayer can claim the application of the principle, whether the real taxation principle can be applied to the discipline area of ​​the specific anti abuse rule, whether the Article 14 of the National Tax Act can be applied when there is a formation of positive and effective legal relations. It is thought that the problem of applying the principle of taxation by the taxpayers should be approached from the viewpoint of whether there is a possibility of inducing tax avoidance behavior in the future rather than solving it dogmatically and from the viewpoint of necessity of relieving taxpayers. In the case of the overlapping application in the discipline area of ​​the individual anti-avoidance rules, the precedent is also diverging. I expect that this part will be resolved by the accumulation of Court decisions in the future. Finally, in case of avoiding taxes by forming positive and effective legal relations, the Article 14 of the National Tax Act should be applied if the above provisions function as a general tax evasion regulation. However, legislative supplementation is required in terms of the predictability of taxpayers.