소급과세의 위헌성－ 조세감면규제법 부칙 제13조 등 위헌소원 －

Abstract

This case is about whether or not it is violating the principle of prohibition of retroactive Legislations in Tax Law for the State to establish tax preferences with the object of inducing taxpayers to do specific acts and later to deprive or curtail them of the tax preferences, which have been given under the current statute, by an amended statute for taxpayers who have meet requirements for the tax preferences. It is a true retroactive Legislation in Tax Law to deprive or curtain taxpayers of tax preferences given for completed increases of capital under the existing statute because it is depriving or curtaining them of vested rights. Different from the opinion above, for periodical taxes it is also true retroactive Legislations in Tax Law to apply retroactively a new statute, which is disadvantageous to taxpayers, in the middle of a taxable year for the period that has passed of the taxable year (from the beginning day of the taxable year to the date of enactment of the amended statute). In conclusion, this case falls under true retroactive Legislations in Tax Law whether this case is interpreted as the deprivation or the curtailment of vested rights or as retroactive application to the period that has passed of the taxable year for periodical taxes. In this point, the topical decision that the case is understood as an untrue retroactive Legislation in Tax Law for periodical taxes is wrong. Thus Additional Clause §13 and §21 of the Tax Exemption Control Law (amended on December 31 1990) violate Constitution §13② and the principle of prohibition of retroactive Legislations in Tax Law.