부당행위계산 부인의 적용범위와 관련된 몇 가지 쟁점에 대한 소고

Article 52 of the Corporate Tax Law (CTL) governs the “denial of unfair acts and calculations”, and Article 88(1) of the Enforcement Decree of the CTL (Regulation) lists the types of unfair acts. The denial of unfair acts and calculations intends to prevent tax avoidance and to achieve fair taxation. But the principle of fair taxation must be harmonized with the principle of the rule of law in taxation. This paper reviewed and analyzed the scope of application of Article 52 and then suggests guidance for revision of Article 52 of the CTL. First, to determine the effective domain of Article 52 of the CTL, this paper reviewed and analyzed the legislative purpose of Article 52 and the taxation system in the CTL, relying on the basic premise that the income tax imposes a tax on income. As a result, several prerequisites for the application of Article 52 have been derived. Among others, the denial of unfair acts and calculations shall apply to transactions that reduce income. Consequently, it does not apply to transactions that have no effect on income. Further, the purpose of Article 52 is not to prevent or penalize transferring wealth among related parties. Considering all prerequisites for the application of Article 52, this study concludes that Article 52 should be revised. This study also reviewed and analyzed the current taxation system, which taxes the counterpart of unfair transactions, and found some problems there as well. Finally, to solve the foregoing problems, this paper presents several alternatives to achieve fair taxation while harmonizing with the rule of law. The main point is to expand the effective scope of Article 52 by explicitly prescribing the transfer of wealth to others within the effective domain of Article 52 and to impose a tax on shareholders of the counterpart company, who benefit from unfair transactions under the gift tax law as newly stipulated instead of currently taxing the counterpart company itself in the CTL.