조세정책의 입법적 기초와 한계* ―최근 주택 관련 조세입법을 중심으로―

Tax policy is one of the important means by which the government can intervene in the area of the economy called distribution, and tax reform as a means to solve the distribution problem is embodied through legislation. Even so, since the exercise of the authority of taxation is a state action that can infringe on the fundamental rights of the people, including property rights, the general principles of tax laws such as the principle of no taxation without tax and the equality of tax burden principle must be observed in tax legislation, as well as constitutional principles, such as the principle of protecting confidence and the principle of excess prohibition etc. must be complied with. These general principles of tax laws and constitutional principles can be said to be the basis and the limit of tax reform to realize the distribution policy. Looking at a series of tax reforms recently implemented as measures for house price stability, it can be seen that a number of key amendments are being institutionalized through the ‘Enforcement Decree' rather than the ‘Act'. In some cases, the delegation provisions of the parent ‘Act’, so it may be questionable whether or not to comply with the legality of taxation. In addition, even though there are delegation provisions in the law, if the revision matters had a large impact on the rights and obligations of the people, it is desirable to stipulate in the ‘Act’ after discussion in the National Assembly. In the recent revised legislation of the tax laws related to housing policy, there are many cases where there are no transitional provisions while reinforcing requirements for reduction or exemption, or reducing the scope of application against taxpayers. If the tax law is revised to reinforce requirements for reduction or exemption, or reduce the scope of application against taxpayers, it is advisable to establish transitional provisions on the assumption of the case that there was a direct cause action closely related to the formation of tax liability before the amendment, and the requirements for reduction or exemption at the time of the amendment were satisfied. On the other hand, since the principle of protecting confidence as a constitutional principle assumes not only past reliance interest but also future reliance interest as a subject of application, it may be questionable whether or not to apply the principle of protecting confidence even if there were no cause action before the revision. In order to avoid conflict with the principle of protecting confidence, if there was no causal action before the revision, but the requirements for reduction or exemption were met at the time of revision, it is necessary to provide a buffer period to make use of them. In recent years, the tax burden for multi-homed people has increased significantly over the entire process of transfer, possession, donation, and acquisition. In Korea, the rise in housing prices and the speculation due to a serious imbalance in supply and demand for housing are remarkable compared to other property rights. In addition, the general public's dependence on land or housing is significantly higher than that of other property rights. For these reasons, the sociality and publicity of housing may be more emphasized and the criteria for applying the principle of excess prohibition may be relaxed. The extent to which vertical equity is achieved through the tax law is the area of legislative discretion, but even so, if the market economy or the private property system is reached to an extent to annihilate it, it may be unconstitutional based on constitutional provisions. Housing is a space that realizes human dignity, privacy, and the right to pursue happiness. In such a case, the discretion of formation of legislators is recognized only in a very limited way, and a rigorous examination based on the principle of excess prohibition is required. Looking at the taxation conditions of the Gross Real Estate Tax, there are cases in which the age range of the deduction for the elderly has not been reached, and there are many single-person or single-family householders whose holding period is not long enough to experience the benefits of the special long-term holding deduction. In today's reality, where the burden of Gross Real Estate Tax is increasing significantly due to a triple increase in the standard declared price, fair market price ratio, and tax rate, the consideration of the meaning of housing is needed at the legislative level for preventing the abandonment of only house due to excessive holding tax burden.