The one of controversial issues about substance over form principle in the Customs Act of Korea is who a taxpayer is when an import declarer is different from the person that an effect of import belongs to. The current Customs Act stipulates a taxpaye...
The one of controversial issues about substance over form principle in the Customs Act of Korea is who a taxpayer is when an import declarer is different from the person that an effect of import belongs to. The current Customs Act stipulates a taxpayer as ‘the owner of goods who imports the goods’, however there is still a gray area because a taxpayer will be changed according to interpretation of this article.
In addition, as a fundamental matter, there is a controversy about whether substance over form principle can be applied in customs law. Although the Korean Supreme Court rules that substance over form principles can be applied customs law, some scholars still argue that substance over form principle must be applied very narrowly because the Customs Act of Korea itself doesn't have provision on substance over form principle and a tariff is imposed on imported goods and considered as an indirect tax. Moreover, district and appeal courts apply substance over form principle in the Customs Act on a case-by-case basis, thus it hinders legal stability.
However, first of all, natures of tariff, a tax on goods and an indirect tax, are not reasonable grounds to rule out application of substance over form principle in customs law. In terms of tax on goods, taxable capacity on profit of acquisition of goods can be recognized because actual belonging of goods isn't different from that of income in view of the fact that an actual payer for tariff is a person. In terms of an indirect tax, it is no sufficient ground to limit application of substance over form principle that a tariff is supposed to be shifted onto others because a shifting and incidence of tax among parties depends on their economic circumstances.
Furthermore, even though the Customs Act of Korea itself doesn't have provision on substance over form principle, this principle must be naturally recognized in customs law because it is a fundamental doctrine of tax and its contents are not different from domestic tax and local tax. However, absence of provision of substance over form principle adds confusion to application of this principle in the Customs Act, therefore, it is more desirable to definitely stipulate this article in the Customs Act of Korea.
Lastly, a current provision in the Customs Act, which is stipulated as ‘the owner of goods who imports the goods’, may act as to limit application of substance over form principle, however the person that an effect of import actually belongs to must be considered as a taxpayer in order to achieve goals of customs law, such as securement of financial revenue and protection of domestic industry. This interpretation also corresponds with legislative's intent to recognize a taxpayer substantially rather than superficially. Moreover, in terms of legislation, it is desirable to revise this clause from ‘the owner of goods who imports the goods’ to ‘the importer of goods’, so it helps to impose tax according to economic substance.