국세기본법 제18조 제1항의 재판규범성 ―대법원 2016.12.29. 선고 2010두3138 판결을 중심으로―

In Supreme Court Decision 2010Du3138 dated December 29, 2016 (the “Decision”), the Supreme Court found that failure to provide an exemption from comprehensive real estate tax to certain real estate in Busan Gangseo-district which was designated as cultural asset while proving such exemption to other real estate designated as cultural assets all over the country was unlawful by violating equity of taxation. In doing so, the Supreme Court cited Article 18(1) of the Framework Act on National Taxes (the “FANT”) as the legal basis for determining such unlawfulness. In other words, in the Decision, the Supreme Court acknowledged the nature of Article 18(1) of the FANT as being a legal rule binding court jurisprudence. The Decision is in particular meaningful because it provides a new standard for how to provide relief in cases where non-bona fide omission to implement legal rules leads to encroachment of rights. In other words, according to the interpretation of the Constitutional Court, it would seem that the Supreme Court would have to await a decision of unconstitutionality by the Constitutional Court regarding Article 6(2) of the Comprehensive Real Estate Tax Act and subsequent amendment of the law until it could have determined the unlawfulness of the tax assessment. However, the Decision is groundbreaking in that the Supreme Court held, without going through these complicated procedures, that the tax assessment is unlawful because it results in unequitable taxation. Meanwhile, the Decision concerns a case where horizontal fairness from among the principle of fair taxation became an issue. But the principle of fair taxation, which forms the constitutional basis of Article 18(1) of the FANT, is understood to encompass both horizontal and vertical fairness. It remains to be seen whether the courts will also apply Article 18(1) of the FANT to determine the unlawfulness of tax assessments in cases concerning vertical fairness as well. If the scope of application of Article 18(1) of the FANT is enlarged to include cases of vertical fairness as well, tax assessments which are inconsistent with the taxpayer’s ability to pay, or which go against the proportionality principle will also be covered by such scope of application. The author finds that in this case, this would result in having a substantially similar effect as the implementation of the German equitable decision (Billgkeitsurteil) that is being discussed by commentators. This means that Article 18(1) of the FANT can become a basis provision for a so-called “Korean-style equitable decision”.