단계거래원칙의 역적용에 관한 고찰

Article 14, Paragraph 3 of the Basic Act on National Taxes(hereinafter “BANT”) states, “If it is recognized that the purpose of receiving the benefits of this Act or the Tax Act unfairly through an indirect method through a third party or through two or more acts or transactions, This Act or the Tax Act shall be applied as it is deemed that a direct transaction has been made or a single continuous act or transaction has been made.” If so, what about the other way around? In fact, people who deal with tax laws are often accustomed to the idea of ​​decomposing one transaction into two or more. However, in most cases, it is not common to think about whether such taxation is legal. Although this issue has not been actively dealt with in Korea, this article intends to examine whether it is possible to apply the tax law by decomposing one transaction into two or more in general. The author intends to temporarily call such a problem ‘reverse application of the step transaction doctrine’. In this article, the content, legislative examples, and limitations of the reverse application of the step transaction doctrine have been reviewed. The conclusions are summarized as follows. First, the reverse application of the step transaction doctrine may overlap with the problem of taxable units, but it cannot be said that the taxation authority can judge the taxable units without any restrictions at its will. Second, in relation to the application of the principle of substance over form, the reverse application of the step transaction doctrine is beyond the scope of application of the principle of substance over form. Third, the reverse application of the step transaction doctrine harms the predictability and legal stability of the taxpayer from the point of view of taxation under rule of law. Therefore, the reverse application of the the step transaction doctrine cannot be generally permissible as a legal principle for taxation without an specific regulation under tax law.