계약해제와 조세

Abstract

This paper introduces the current stipulations of tax laws, tax cases and tax commentaries relating to the cancellation of contract and re-evaluate the validity of them. The conclusions are as follows; First, the starting point of reckoning of exclusion period on Article 45-2 Paragraph 2(Ex Post Factors of Rectification) of "Framework Act On National Taxes" shall be the latest among the first dates after statutory tax return period or the assessment by National Tax Service('NTS'), on the one hand, and the first informed date relating to the occurrence of cancellation of contract, on the other hand. Second, "Framework Act On National Taxes" Article 45-2 and "Enforcement Decree" thereof Article 25-2 shall be applied to the case from the objection of the assessment not through the request for rectification above, as well. Third, in case of the occurrence of lapse of tax return period, the assessment by NTS and cancellation of contract on a sequential basis, the reference point in time of judgement about the case from the objection of the assessment shall be the point in time of not assessment, but closing argument of fact-finding proceedings. Fourth, in case of acquisition tax, "Enforcement Decree Of Local Tax Act" Article 73 has priority over "Enforcement Decree Of Framework Act On National Taxes" Article 25-2 about the tax treatment of cancellation of contract. But the restoration to the original property owner due to cancellation of contract shall not be the acquisition in the context of acquisition tax. Fifth, in case of the cancellation of contract by exercise of rescission, "Framework Act On National Taxes" Article 45-2 and "Enforcement Decree" thereof Article 25-2 shall be applied. In case of the cancellation of contract by consent, "Inheritance Tax and Gift Tax Act" Article 31 paragraph 4 and 5 have priority over "Enforcement Decree Of Framework Act On National Taxes" Article 25-2 about the tax treatment of cancellation of contract in the context of gift tax. But "Inheritance Tax and Gift Tax Act" Article 31 paragraph 4 and 5 may be against the "Constitution Of The Republic Of Korea". Sixth, "Framework Act On National Taxes" Article 45-2 and "Enforcement Decree" thereof Article 25-2 shall be applied to the cancellation of contract in the field of "Corporate Tax Act" due to the absence of explicit stipulations thereof. The term "compelling cause" on the "Enforcement Decree" above shall be interpreted as the "causes like the exercise of rescission" in the context of corporate tax. Seventh, "Framework Act On National Taxes" Article 45-2 and "Enforcement Decree" thereof Article 25-2 shall be applied to the cancellation of contract in the field of "Value-Added Tax Act" due to the absence of explicit stipulations thereof. The term "compelling cause" on the "Enforcement Decree" above shall be interpreted as the "absence of factors that may result in the impediment to the collection proceedings by NTS and the serious waste of administrative operations by NTS in the context of value-added tax. Eighth, "Framework Act On National Taxes" Article 45-2 and "Enforcement Decree" thereof Article 25-2 shall be applied to the cancellation of contract in the field of "Income Tax Act" due to the absence of explicit stipulations thereof. The term "compelling cause" on the "Enforcement Decree" above shall be interpreted as the "absence of red flags that show deficiencies by taxpayer in advance and factors that result in the serious waste of administrative operations by NTS in the context of transfer income tax.