납세의무자에 의한 실질과세원칙 주장가능성에 관한 소고

In the substance over form principle, the concept of substance has been somewhat defined as economic substance, but there are still many parts that have not been clarified regarding its scope and boundaries of the substance over form principle. One of them is “the possibility of claiming the substance over form principle by the taxpayer.” Given the general principle of law that the substance over form principle contains, it is difficult to conclude the discussion on the scope of application of the substance over form principle based solely on legal provisions. However, considering the current tax law system, we will examine the possibility of taxpayers claiming the substance over form principle based on FRAMEWORK ACT ON NATIONAL TAXES Article 14, which is a written provision. Looking at case in Korea, most of the time, taxpayers do not claim and apply the substance over form principle from the beginning, but rather, when the tax authority makes a levy assessment, the taxpayer argues that the levy assessment is against the substance over form principle. Considering the method of determining tax liabilities, in addition to cases where the taxpayer claims the substance over form principle as a defense (levy assessment system), there are also cases where the taxpayer must claim the substance over form principle (self assessment system). The starting point of this article is whether it is possible for a taxpayer to assert the substance over form principle when filing a tax return. In order to clearly understand the specific situation regarding the above issue, we will start by looking at a few cases. Considering that the issue is not clear in terms of legal interpretation, we will analyze the issue of this article from a foreign law as a starting point for thinking. We will examine the theory and case regarding the possibility of the taxpayer claiming the substance over form principle in the US tax law, and examine whether it conforms to the guiding ideology of tax law, which is efficiency. In the case of Korea, it was confirmed that due to the lack of legal principles and precedents that directly address this issue. There was a risk that arbitrary judgments by judges could be occurred and taxpayer’s predictability could be undermined. As a legislative alternative, I propose to specify in FRAMEWORK ACT ON NATIONAL TAXES Article 14 that taxpayers can assert substance over form principle only within a certain time and content scope.