세무조사 중지기간의 세무조사에 기한 과세처분의 위법성 판단과 재처분 문제

Abstract

The tax investigation conducted during the period of suspension of the tax investigation violates Article 81-8 (5) of the Framework Act on National Taxes and can be evaluated as illegal from the perspective of the principle of due process under the Constitution. The same applies to the tax investigation conducted after the end of the tax investigation period. In this way, if an illegal investigation is involved, such as an investigation being conducted during the period of suspension of the investigation, it cannot be uniformly determined whether the taxation disposition made based on it is illegal as it is recognized as a serious procedural violation. The purpose and implementation of the investigation, the subject, method, and content of the investigation, data obtained through the investigation, the size and duration of the illegal investigation, the impact on taxpayers’ freedom of business or legal stability, and the extent of damage to taxpayers. It is important in that the Supreme Court recently judged that it could be regarded as a serious procedural defect enough to cancel the disposition of comprehensive income tax in the case of an illegal tax investigation for several hours in the afternoon during the tax investigation suspension period. As a result, in addition to abuse of investigation rights, illegal selection of investigators, and violation of the principle of prohibition of duplicate tax audits, the type of tax audit conducted during the period of suspension of tax audits can be recognized as illegal reasons for subsequent taxation. In principle, if the taxation disposition is canceled due to significant procedural defects during the tax audit process, the theory of re-disposal restriction is valid, but in general taxation procedures, it can be easily supplemented by classifying and specifying missing procedures and re-disposing them if they do not require special cooperation from taxpayers. In the same vein, it is reasonable to say that if the tax disposition due to the tax audit conducted during the suspension period is canceled, it cannot be re-disposed in terms of the purpose of the due process principle, the principle of prohibiting duplicate tax investigations, and the possibility of repetitive infringement of basic rights.