조세법 연구 방법론

Abstract

This paper reviews the methodology or canons of interpreting tax statutes and this paper suggests the conceptual framework of enacting tax statutes and regulations. The theses of the paper are as follows: 1. The canon of strict interpretation of tax statutes is a mere rhetoric in the practice of Korean courts. Despite the canon, the courts have often ― albeit tacitly ― adopted expansive interpretation and also permitted taxation by analogy. 2. How to interpret a tax statute can be mandated by the Constitutional Law or a statute, but the Korean Constitutional Law or statutes do not have any provision requiring a strict interpretation. Moreover, based on the language, history and the structure of the Korean Constitutional Law, there exists no logical basis to deduct the requirement of strict interpretation from the Law. 3. The doctrine of substance over form is taxation by analogy, invented for the purpose of establishing an indefinite but inherent limit to the analogy. 4. The maxim that tax law can be written only in statutes is not practicable in the contemporary world because tax rules are often too complex to exist only in the form of statutes. A strict adherence to the maxim will make tax statutes much too complex for human understanding, and such self-standing statutes will conflict with its twin maxim that tax rules must be clearly intelligible. 5. Judgement of an economic efficiency of a tax rule is a judgement of fact, and is not a value judgement. As a result, efficiency of a tax statute cannot be left completely to the discretion of the legislative or the administrative body, and is subject to judicial review by court judges, whose power is legitimized not by democracy but by their intellectual capacity. The efficiency aspect of a tax rule, however, often involves a deep level analysis of social science, which a court judge is less well prepared to analyze than the policy makers of the legislative or administrative body. In this event, courts must defer to the judgements of such policy makers. 6. Inefficiently designed tax statutes are subject to judicial review, because inefficiency normally involves non-neutral taxation, which in turn infringes on the constitutional freedom.