위장이혼에 대한 실질과세원칙의 적용 가능성에 관한 연구 ―사실상 상반된 결론의 두 판결의 비교․분석을 중심으로―

Up to now, the substance over form principle in taxation has usually been concerned with economic activities, and actions or transactions thereof. Then, a question arises as to whether this principle can be applied to activities related to family law, especially, disguised divorce. In 2017, the Supreme Court rendered two decisions addressing the foregoing question as follows： First, the Supreme Court denied applying this principle to a case of a seemingly disguised divorce which concerned ‘capital gains tax exemption on one household with one house’ (Supreme Court Decision September 7, 2017, 2016Du35083). Second, the Supreme Court also held that this principle is not applicable to a disguised divorce while indicating the possibility of applying the principle to some portion of the divided assets resulting from the disguised divorce. (Supreme Court Decision September 12, 2017, 2016Du58901). In a sense, these two decisions can be regarded as identical in that the substance over form principle was not applied. In substance, however, the two cases reached a contradictory conclusion with each other. The author believes that the substance over form principle should apply to disguised divorce cases whose sole purpose is tax avoidance, thereby denying the tax law effects following the divorce. In this regard, it is difficult to concur with the two decisions of the Supreme Court. The two decisions will continue to have effect for a while, and much difficulty is expected in dealing with tax avoidance practices taking advantage of disguised divorce.