호주의 일반조세회피방지규정의 발달과정에 대한 고찰

It is said that Australia has had the longest history of developing general anti-avoidance rules in the world. As a result of long observance of literalism and strict interpretation in courts, Part ⅣA, a modernized general anti-avoidance rule, was added in the Income Tax Assessment Act 1936. This article reviewed the development process of general anti-avoidance rules in Australia and drew meaningful implications from such process that will impact the Korean regime as follows: First, it is necessary to clarify the scope of a transaction within Article 14 ③ of the National Tax Basic Act. That is, the term “transaction” should be prescribed as “any form of transaction, treatment or any other legal relation.” Also, it is necessary to establish a principle as to whether only a whole transaction is subject to a court review or whether a part of the whole transaction can be subject to a court review. Currently, some courts in U.S. and Australia allow a part of a transaction to be reviewed. Second, Article 14 of the National Tax Basic Act does not have any definition of a tax benefit, the objective factor of tax avoidance. Therefore, it may be better to provide a tax benefit as “reduction, avoidance, delay or unreasonable refund of a tax liability or any other similar benefit in taxation.” In addition, it is necessary to set up the scope of a tax benefit subject to an anti-avoidance rule in an Enforcement Decree. Lastly, the subjective test, consideration of a taxpayer’s intention of tax avoidance, should be established. As in the “dominant purpose test” in Part Ⅳ, it is necessary to set up the principle relating to how to consider the proportion between tax avoidance purpose and business purpose.