세법상 조세회피부인방법으로서의 사실인정에 관한 연구 - 일본의 「사법상 법률구성에 의한 부인론」에 관한 논의를 중심으로 -

Abstract

The imposition and collection of taxes under the tax law should be based on principles of no taxation without law and tax equalitarianism by constitutional law. In other words, if not regulated by law, it can be said that there is no tax obligation even if there is economic capacity. Tax avoidance can be cited as the example. The method of Anti-Avoidance Rule is generally referred to as Specific Anti-Avoidance Rules(SAAR) and General Anti-Avoidance or Abuse Clause (GAAR). Korea denies tax avoidance in accordance with GAAR such as Article 14(3) of the Framework Act on National Taxes. On the other hand, tax avoidance is denied in accordance with SAAR in Japan. In this point, the opinion is said that is Anti-Avoidance by fact finding in Japan. This opinion has been introduced and mentioned in Korea. In this study, it will review for that opinion based on previous studies. In addition, this study will review the judgment mentioned as based on this view. In short, the theory of Anti-Avoidance by fact finding can judge as not true for the transaction if there is a purpose of tax avoidance to taxpayer. According to this opinion, a transaction without tax avoidance purposes can be considered as a true transaction in taxation. In addition, if the taxpayer fails to prove that there was no purpose of tax avoidance, it could be deemed denied even if it is valid. Japan's common belief is that personal valid transaction activities by principle of private autonomy is accepted in fact finding in tax law even though taxpayers had purpose of tax avoidance. Anti-Avoidance by fact finding differs from conclusions conventional views in this respect. However, the opinion could have implications as a way for taxation in Korea, which more concerns economic substance. In this study, it reviewed Anti-Avoidance by fact finding in tax avoidance case. And it is done how this view was introduced in Korea in the past. In addition, it studied what discussions were conducted in Japan on this opinion. Tax avoidance is an important area under the tax law. It is expected that this study will contribute to understand Japan's discussion.