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Unconstitutionality of Restriction of Tax Service Area of Lawyers with Tax Accountant Qualification

  • Public Land Law Review
  • Abbr : KPLLR
  • 2021, 94(), pp.325-348
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law
  • Received : April 30, 2021
  • Accepted : May 21, 2021
  • Published : May 25, 2021

Moon-Hyun Koh 1

1숭실대학교

Accredited

ABSTRACT

In this thesis, among the alternative proposals of the Planning and Finance Committee for the amendment of the Tax Affairs Act proposed on November 29, 2019, and the representative proposal for the amendment of the Tax Affairs Act on July 22, 2020, the tax representative of a lawyer qualified as a tax accountant. Constitutional problems such as reduction of work area, tax accountant registration system, and provision of practical training conditions were examined. Conclusions are as follows. the reduction of the tax agency work area of ​​lawyers who are qualified as tax accountants is unconstitutional. The alternatives above are the verification of fidelity reporting under the 'Income Tax Act' or 'Corporate Tax Act' and 'Agency of making a book for tax reporting (No. 3)' among the duties of a lawyer qualified as a tax accountant. No. 8)' It is restricted from doing business. However, this reduction of the scope of work violates the principle of prohibition of excess and essential content infringement, which is the constitutional limitation [Article 37 (2)] of the constitution to restrict basic rights required by the constitution for the freedom of choice of profession (Article 15 of the Constitution) for a lawyer qualified as a tax accountant. It is judged to be an unconstitutional law that is excessively restricted beyond necessity. In particular, although formally limited to two of the eight areas of tax accountant's work, bookkeeping (so-called 'booking work') is the starting point of tax accountant's work and a link between subsequent work such as tax adjustment invoice preparation, so it is at the center of tax accountant's work. The legislator's decision to exclude these duties is not only a legitimate means to achieve the legislative purpose of protecting the rights and interests of taxpayers by preventing poor tax agency work, but also that it violates the basic rights of the subject of related basic rights, the principle of minimization of infringement. Furthermore, it infringed on the essential content of the freedom of choice of profession, to the extent that the tax accountant's job was punished and the attorney with the qualification of a tax accountant lost the purpose of guaranteeing the freedom of work as a tax accountant. In addition, in terms of discrimination according to the time of acquisition of the attorney's qualification, it was confirmed that it was unconstitutional discrimination that could not recognize a strict proportional relationship from the viewpoint of discrimination from other qualified companies (tax accountant exam passers, public accountants). Lastly, the freedom of choice of tax accountants, which is a form of self-determination, in the economic life of the people who are taxpayers, is also subject to great restrictions, resulting in an unconstitutional legislative bill that goes beyond the limitations of the basic rights of the Constitution. In conclusion, since the alternatives to the Planning and Finance Committee and Representative Proposition Yang Kyung-sook do not fully reflect the purpose of the Constitutional Court's determination of constitutional inconsistency with respect to Article 6 of the Tax Affairs Act, etc., it contains unconstitutional content, taking into account the points mentioned above and removing the unconstitutionality.

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