租稅訴訟에 있어 信義誠實의 原則 -납세의무자에 대한 신의성실의 원칙 적용과한계를 중심으로-

Abstract

The principle of the good faith and fair dealing that validates the illegal taxation in some cases is in conflict with the principle of no taxation without law. For this reason, the application of the principle of the good faith and fair dealing to the tax payers has been argued. According to article 15 of the Framework Act on National Taxes, the principle of the good faith and fair dealing can be applied to the tax payers. To dispel concerns that the principle of no taxation without law is invaded by the application of above principle, it is necessary to categorize the application types of above principle and define the applicable requirement by categories. The Supreme Court has given decisions that above principle can not be applied to the tax payers in almost cases the tax payers did not follow their preceding words and actions, so-called ‘the type of estoppel’. It is meaningful that, in this decision, the Supreme Court expands the scope of the application of above principle to the issue of the application of above principle in the case the tax payers involved in irregular transactions of gold bullion claim the input tax amount deductions in value added tax. However, I don’t agree on the majority opinion in this decision that above principle can be applied to the tax payers who are involved in irregular transactions by intention or gross negligence. I think that above principle can be applied to the tax payers who actively conspire transactions with offenders.