조세 개념의 한계에 대한 소고(小考) ―미국 연방대법원 NFIB v. Sebelius의 조세․금전벌 구별 쟁점을 중심으로―

In this paper, we will examine the issues concerning the distinction between a tax and a penalty as a way to explore the normative limit of tax concept. We will also consider an answer to the fundamental question of whether there is a limit in defining the concept of tax through examining the common points and differences between a tax and a penalty. The study of the National Federation of Independent Business(“NFIB”) v. Sebelius (2012) will be a good point of departure for discussion in this article. The major issue herein concerns the question of whether the individual mandate under the Patient Protection and Affordable Care Act(“ACA”) is a “tax” or a “penalty” The Supreme Court of United States in NFIB case took the functional approach in reviewing the provision at hand and observed that the penalty described in the Act shall be interpreted as a tax rather than a penalty, because Section 5000A of the ACA can be reasonably be read as a tax and the Federal Government does have the power to impose a tax on those without health insurance. The Court did not accept the plaintiffs’ claim that the shared responsibility payment under the ACA is unconstitutional as it is beyond the scope of taxing power. The debate of the distinction between a tax and a penalty in the U.S. case law provides meaningful legal implications for Korea's legal system. According to the traditional notion that emphasizes the function of generating revenues of a tax, the concept of taxes is strictly distinguishable from that of penalties. However, as interventional taxes become popular, more than ever, the role of a tax as indirect regulations attracts significant attention. A tax with non-financial purpose is more likely to be subject to the risk of confiscatory taxation. Also, in case of a tax being levied together with other monetary penalties, it will likely to have de facto effects of double punishment on the taxpayer, which could lead to severe restrictions on the property rights. That means, legislators should be cautious in devising legislation on regulatory taxes. The discussion on the distinction between a tax and a penalty also has meaning for the Constitutional Court in considering the relevant principles of constitutional review. That is because, in reviewing the constitutionality of a tax which has strong characteristics as a penalty, it will be needed to apply the standard of judicial review, which is specifically tailored to the penalizing nature of that tax.