국세기본법상 중복세무조사금지 규정에 관한 소고 - 중복세무조사금지 규정의 적용 요건을 중심으로 -

Abstract

Recently, the Supreme Court has rendered a series of decisions addressing the procedural illegalities of tax audit. In particular, some of the decisions dealing with the prohibition of duplicate tax audit under the Framework Act on National Taxes are contrary to the exiting tax audit practices and have garnered much attention from the tax authorities, which exercise the right of tax audit, as well as taxpayers who dispute the legality of their tax assessments. Because the tax assessment based on illegal duplicate tax audit is considered illegal in and of itself, and such illegality in the tax assessment ultimately results in a cancellation of the tax assessment. This paper will provide a critical analysis of the exiting court precedents on the criteria for application of the provision on prohibition of duplicate tax audit and the remedies available to taxpayers who are subject to duplicate tax audits. In addition, the paper will present an interpretation of the areas that are yet to be clarified by the court precedents and will also briefly touch upon the areas for which legislative efforts are necessary. To summarize, first, duplicate tax audits should be strictly restricted as it is necessary to protect a taxpayer’s fundamental rights from the tax authority’s exercise of excessive right of inspection and to develop advance tax audit methods that can minimize the tax authority’s infringement of taxpayers’ interests. However, the extent of such restriction should be determined based on a reasonable consideration of public interest, such as realization of appropriate and equitable taxing right. Next, a taxpayer can seek relief from an illegal duplicate tax audit by filing a request for protection of taxpayer rights, filing a tort claim against the government, seeking a cancellation of the disposition of decision for tax audit, and seeking a cancellation of tax assessment based on illegal tax audit.