사례로 살펴본 부당행위계산부인제도에 관한 연구

Abstract

The subject of this treatise is study on the rejection system of the unfair actions and calculations(hereinafter called "rejection system") through analysis of litigious cases. It is desirable that rejection system should go in the direction of balancing the status of tax authorities which seek to prevent tax avoidance and that of taxpayers which seek to protect their rights. In this study, 304 cases of administrative, judicial courts and tax tribunals concerning rejection system which were posted up in nat'l tax information system(taxinfo.go.kr) of National Tax Service were collected and analyzed. Because the scope of unfair actions is so abstract and there is no uniform criteria for judging "unfairness" in respective tax laws, which causes the tendency of " in dubio pro fisco" from tax adminstration, regulations should be revised by enacting criteria for judging "unfairness" in law(not in enforcement ordinance) and by enacting common rules in tax basic law. Since the regulation in corporate income tax which stipulates in the case of uncertainty of market price to refer only to the amount of certified evaluation firm or the amount by the regulation in inheritance and donation tax doesn't reflect all the circumstances including the situation of lack of no similar transactions, it is suggested to introduce arm's length methods of law on reconciliation of int'l tax the reasonableness of which was fully verified. It is necessary to limit the scope of kindreds and to exclude 'kindreds under same livelihood with economic dependance' from the scope of kindreds of employees and to restrict the scope of shareholders to "controlling shareholders, etc." It is also necessary that concerning the double taxation problems aroused by the income disposition of rejection system, regulations on double taxation adjustment such as interest, dividend and other income should be clearly enacted and regulations on double taxation adjustment of alienation income should be enacted only in law(not in law and enforcement ordinance separately) Surely taxpayers will feel predictability and legal stability and perform the Obligation of Paying Taxes faithfully in comfort when tax officials well understand laws and institutions and operate them with general thinking.