[위헌제청신청][공2011하,2145]
[1] The meaning of "the principle of confirmation of rights", which is the principle of determining the period of attribution of income under the Income Tax Act, and whether Article 24 (1) of the Income Tax Act, which is based on the principle of confirmation of rights, violates the principle of substantial taxation without law, the principle of property rights guarantee, and the principle of
[2] Whether Article 24 (3) of the Income Tax Act, which delegates matters necessary for the scope, calculation, or period of determination of the amount to be included in the total amount of income, violates the principle of prohibition of comprehensive delegation under the Constitution (negative)
[1] Article 24(1) of the Income Tax Act provides that not only the amount received in the pertinent year but also the amount received shall be included in the total amount of income in the pertinent year. This provision provides that the year to which the total amount of income belongs shall be determined according to the principle of confirmation of right. The principle of confirmation of right, which is the principle of determining the period to which income accrues under the Income Tax Act, is the principle of determining the period to which income accrues, shall be based on the time when the right which is the cause of income accrues when the income is determined and the income is realized when there is a time interval between the time when the income is determined and the time when the income is realized, and shall be deemed as the method of calculating the income of the pertinent year. Such principle of confirmation of right is a principle allowing a prior taxation of uncertain income on the premise that it will be realized in the future. Such principle of confirmation of right is aimed at preventing a taxpayer’s income from affecting the taxable year’s income by preventing it from being determined by the taxpayer’s income in the tax-related technology and uniformly grasping income.
[2] Article 24(3) of the Income Tax Act delegates to the Presidential Decree matters necessary for the scope, calculation, or final determination period of the “amount to be received” to be included in gross income. In this context, “amount to be received” can be easily predicted that the “amount to be received” is “amount to be received but not actually received,” and it is difficult to uniformly determine the scope, calculation, or final determination period due to the complicated and technical nature of economic activities, and thus, it is also necessary to delegate it to the Presidential Decree. The concept of the amount to be received and the scope or limitation of inherent delegation in the principle of the right confirmation. Therefore, Article 24(3) of the Income Tax Act does not violate the principle of the prohibition of comprehensive delegation legislation.
[1] Articles 38 and 59 of the Constitution, Article 24 (1) of the Income Tax Act / [2] Article 75 of the Constitution, Article 24 (3) of the Income Tax Act, Article 45 (9) 2 of the Enforcement Decree of the Income Tax Act
[1] Supreme Court en banc Order 2001Du7176 Decided December 26, 2003 (Gong2004Sang, 259) en banc Order 2009Hun-Ba92, 139 (Consolidated) Decided February 25, 2010 (Hun-Gong161, 569) (Hun-Gong2) / [2] Constitutional Court en banc Order 2009Hun-Ba289 Decided February 24, 201 (Hun-Ba173, 409)
Applicant (Law Firm Sejong, Attorney Kim Ba-young, Counsel for plaintiff-appellant)
The request for adjudication on the constitutionality of the instant case is dismissed.
The grounds for application shall be examined.
1. Article 24(1) of the Income Tax Act provides that not only the amount received in the year concerned but also the amount received in the year concerned shall be included in the total amount of income in the year concerned. This provision stipulates that the year to which the total amount of income belongs shall be determined in accordance with the principle of confirmation of right. The principle of confirmation of right, which is the principle of determining the period to which income accrues under the Income Tax Act, is the principle of determining the period to which income accrues. In the event of a time interval between the time when the right which is the cause of income accrues and the time when income is realized, it shall be deemed that there is a time income based on the time when a right that is not the time when income is realized, and in principle, it is the principle of allowing a prior taxation on the income of the year concerned on the premise that it will be realized in the future
Such a principle of confirmation of right is intended to ensure fairness in taxation by preventing a taxpayer from sustaining an income for a taxable year by his/her own person and to uniformly understand income from tax technology. Thus, this principle of confirmation of right does not violate the principle of no taxation without law, the principle of property right guarantee, and the principle of excessive prohibition (see Constitutional Court Order 2009Hun-Ba92, 139, Feb. 25, 2010).
2. Article 24(3) of the Income Tax Act delegates to the Presidential Decree matters necessary for the scope, calculation, or final determination period of the “amount to be received” to be included in gross income. Here, “amount to be received” can be easily predicted that the amount to be received was determined by the Presidential Decree, but it is difficult to uniformly determine the scope, calculation, or final determination period due to the complicated and technical nature of economic activities, which are the source of which, in turn, has a complicated and complicated economic nature. Therefore, there is a need to delegate this to the Presidential Decree, and the concept of the amount to be received and the scope or limit of its inherent delegation in light of the principle of confirmation of rights can be sufficiently grasped.
In addition, deeming the receipt date of interest income concerning profits from non-business loans as “the date of payment of interest under an agreement” is only the content prescribed by Presidential Decree according to delegation of the above provision. The legitimacy of delegation shall be independently determined in accordance with the legal principles of comprehensive delegation. If delegation is justifiable as a result, it does not affect the unconstitutionality of the delegation provision by Presidential Decree as to whether it is unconstitutional (see Constitutional Court Order 2009Hun-Ba289, Feb. 24, 201).
Therefore, Article 24 (3) of the Income Tax Act does not violate the principle of prohibition of comprehensive delegation legislation.
3. Therefore, the applicant’s request for a review on the constitutionality of the instant case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ahn Dai-hee (Presiding Justice)