지방세기본법 개정에 따른 과점주주에 대한 취득세 납세의무에 관한 연구 -지방세법 시행령 제11조 제2항의 해석을 중심으로-

Abstract

The Local Tax Law, revised on January 1, 2013, gave a wider definition of the specially related person, whereupon there have been increasing cases where a non-oligopolistic stockholder has been an oligopolistic stockholder and as a result his/her share has increased by the acquisition of real stocks. Hereat, the present study was conducted to analyze the cases of oligopolistic stockholders whose shares should be included in the share calculated at the highest percentage in 5 years in accordance with Clause 2, Article 11 of the enforcement decree of the Local Tax Law (hereinafter referred to as “the 5-year highest share”). Some maintain that the 5-year highest share calculated before January 1, 2013 should be applied by the unrevised law, and that the one calculated after the date should be applied by the revised law. In case oligopolistic stockholders are defined by the unrevised law and their 5-year highest shares are calculated based on that law, deemed acquisition taxes must be retrospectively levied on some shares acquired by them, which may lead retroactive taxation. The revised law and its supplementary provisions do not give another definition to the oligopolistic stockholder defined prior to the revision of the related law. Accordingly, in terms of legal interpretation, it is proper to regard ‘the related oligopolistic stockholder’ stipulated in Clause 2, Article 11 of the enforcement decree of the Local Tax Law as all the stockholders included in oligopolistic stockholders. Such an interpretation may further satisfy the principle of no taxation without law as well as the prohibition of retroactive taxation. Meanwhile, in terms of de lege ferenda, the Local Tax Law gave a new definition of the specially related person on January 1, 2013, and therefore has given a new definition even to the oligopolistic stockholder who should pay the deemed acquisition tax. As the case stands, there is the need to the related supplement supplementary provisions and exceptional clauses.