2022년 국세기본법과 소득과세 관련 대법원 판결들 개관(槪觀) ―『판례공보』에 수록된 것을 중심으로 ―

Abstract

It is a common practice in Korea to review at the beginning of each year decisions rendered by the Supreme Court during the previous year in the area of one’s interest. This article is aligned with the said practice, and accordingly, reviews six tax law cases, one of which has to do with the well-known substance-over-form doctrine. In this case (2017 du 41313), it is noted that the Supreme Court followed and entrenched the recent case law by acknowledging that the foregoing doctrine may be invoked by the tax authorities who want to tackle aggressive tax planning schemes. Among the remaining cases, which deal with income taxation, the two international tax cases (2018 du 36592, 2018 du 39621) are worth a special mention in that the ever-elusive issue of royalty taxation lies in the heart of both cases, whereas the relevant contracts contain diverse, legally distinct elements that may (or may not) require differential tax treatments. The holdings in the above two Supreme Court decisions do not appear to be always convincing, and often seem to call for more in-depth arguments and reasoning although admittedly, it has become harder and harder to analyze lucidly legal problems presented by multinational enterprises that possess and exploit from highly valuable intangible assets. At the risk of being too quick to jump to the conclusion with too few samples, the general trend seems clear to this author in that highly sophisticated tax avoidance cases are increasing in number, and understandably, more and more complicated international tax cases come to be adjudicated by the Supreme Court. It should not be forgotten, however, that there are also cases where more basic, but fundamental issues are disputed, and even in those cases which look more familiar, there are always legal questions that should be continually reviewed, and the conventional answers constantly re-evaluated. This article also deals with a few of these more general income tax cases.