회생기업 등록면허세를 둘러싼 행정법적 쟁점의 검토 및 개선방안에 대한 연구

Abstract

In 2023, a number of media articles reported that local governments in various parts of the country had taxed the registration and license taxes of rehabilitation companies more than five years after the time of application for rehabilitation, and the amount amounted to KRW 109 billion as of the end of July 2023, of which the additional taxes (failure-to-file penalty and delayed payment tax) alone accounted for KRW 42 billion, or 40%. This was due to the fact that the relevant laws, the former Debtor Rehabilitation Act and the former Local Taxation Act, contradicted each other with respect to the same matter, i.e., the registration of a pledge made in a corporate rehabilitation proceeding, for non-tax purposes and for tax purposes, respectively. In a related lawsuit, it was pointed out that this legislative difficulty was caused by the fault of the legislative entities, including the competent ministries, and the Ministry of Justice and the Ministry of the Interior and Safety made some amendments to the laws based on reflective considerations, and the revised Debtor Rehabilitation Act and the Local Tax Act have been in effect since 2024. The purpose of this article is to provide an overview of the regime related to the registration license tax and the legislative background that has led to contradictions and conflicts on the taxability of such taxes, to review the current status of ongoing cases in this regard, and to address the interpretation issues related to the registration license tax and how they can be improved. This article suggests the following improvement plans. First, with regard to the interpretation of Article 3 of the Supplement to the Revised Local Tax Act of 2024, as to whether the principle of equality is violated, it is consistent with the standard of interpretation of tax laws set forth in Article 20(1) of the Local Tax Act to interpret the Revised Local Tax Act so that rehabilitation companies that have already completed rehabilitation proceedings or implemented a rehabilitation plan can benefit from the tax exemption of the Revised Local Tax Act in the same manner as rehabilitation companies that have not. Second, with regard to retroactively applying amendments to tax laws that are favorable to taxpayers, consideration could be given to amending the provisions of Article 3 of the Appendix to the Revised Local Tax Law of 2024 to grant tax exemptions to rehabilitation companies that have completed rehabilitation proceedings or implemented a rehabilitation plan. Third, as to whether the trust protection doctrine is violated, the rehabilitation companies' reliance interests on the validity and continuation of the provisions of the old debtor-in-possession laws and their reliance interests on the practice of tax exemption from registration licenses should be interpreted to protect their reliance. Fourth, in administrative practice, it is necessary for each local government to self-correct through the active administrative system. In the end, the issues raised in this article are all related to the legal stability of the Korean legal system and its amendments, as well as the predictability of the taxpayers, the rehabilitation companies. I hope that the various suggestions discussed in this article, such as judicial solutions through legal interpretation, legislative solutions, or self-corrections within the disposition agency, will help to protect the rights of rehabilitation companies that have been unfairly treated in the future.