실질과세원칙에 입각한 이슬람 금융의 과세방법

Abstract

Islamic finance showed the largest growth in the international financial markets since the global financial crisis in 2008. Islamic finance complies with Islamic law(Sharia), which include avoiding transactions of interest called riba, excessive risk taking called gharar and speculative activities called maysir. In Korea, Islamic finance had been attempted to introduce by submitting an Amendment of 『The special tax treatment control law』 to the National Assembly. However, the introduction failed due to the controversy over the government's favoring Islamic finance and the opposition of Christians and has been no progress for the long time. With the growing demand for Islamic finance, many non-Islamic countries as well as Islamic countries are beginning to amend or adopt their domestic related laws and system for better using Islamic finance. Considering the continuing growth of Islamic finance, Islamic finance will be alternative system to conventional finance. Thus our government should actively revise the legislation to adopt Islamic finance. Islamic financial instruments are designed to earn profits in return for the transactions which accompany with services and real assets instead of transactions of interest. Tax issues related to Islamic financial instruments are mainly the characterization of the income derived from those instruments. Two approaches can be adopted in this respect. A legal approach based on the form of the contract of transaction, and an economic approach based on the economic substance of the contract of transaction. There has adopted an economic approach in most countries, which introduce Islamic finance. Those countries comprehensively define Islamic financial instruments focusing on the structure of those instruments, and prescribe the income derived from certain Islamic financial products deal with interest by law. To successfully adopt Islamic finance in our country, it must first be understood which Islamic financial instruments just are not different from conventional financial instruments although the characterization of Islamic financial instruments is designed differently according to Islamic law(Sharia). Current tax law regulating the principle of substantial taxation focuses on the economic substance. Therefore, considering the essence of Islamic finance that generates profits in indirect forms, the taxation of Islamic financial instruments based on an economic approach is more reasonable. Also it is necessary to define "alternative finance arrangements" meaning Islamic financial instruments instead of specifying the terms of Islamic financial instruments directly. Then, most Islamic financial instruments can be carried for tax purposes consistently. It will enable to treat Islamic financial instruments for tax purposes clearly to have special regulation which defines the characterization of the income derived from those instruments if necessary. In addition, tax neutrality must be considered significantly when the tax treatment of Islamic finance is reviewed. Accordingly it is necessary to establish provisions adjusting the double tax occurring in the process of purchase and repurchase of assets for tax neutrality. If not, Islamic financial instruments which are additionally taxed more than conventional financial instruments will be noncompetitive. Compared to the existing studies associated with Islamic finance, this study is significant as it reviews the tax treatment of Islamic finance. Moreover, the study bears differentiated meaning as it also identifies the tax treatment of Musharaka, Mudaraba and Murabaha which are hardly being reviewed in previous studies.