조세법 연구 방법론

Abstract

This paper reviews the methodology or canons of interpreting tax statutes and

this paper suggests the conceptual framework of enacting tax statutes and

regulations. The theses of the paper are as follows:

1. The canon of strict interpretation of tax statutes is a mere rhetoric in the

practice of Korean courts. Despite the canon, the courts have often ― albeit

tacitly ― adopted expansive interpretation and also permitted taxation by analogy.

2. How to interpret a tax statute can be mandated by the Constitutional Law

or a statute, but the Korean Constitutional Law or statutes do not have any

provision requiring a strict interpretation. Moreover, based on the language,

history and the structure of the Korean Constitutional Law, there exists no

logical basis to deduct the requirement of strict interpretation from the Law.

3. The doctrine of substance over form is taxation by analogy, invented for

the purpose of establishing an indefinite but inherent limit to the analogy.

4. The maxim that tax law can be written only in statutes is not practicable

in the contemporary world because tax rules are often too complex to exist only

in the form of statutes. A strict adherence to the maxim will make tax statutes

much too complex for human understanding, and such self-standing statutes will

conflict with its twin maxim that tax rules must be clearly intelligible.