稅務調査 決定通知의 處分性

Abstract

A tax is a compulsory payment levied by the government on individuals or companies to meet the expenditure which is required for public welfare. The legislation shall enact the tax law because tax is compulsory financial burden not a voluntary payment or donation. All nation is liable for paying tax, however no one likes to pay tax. Therefore some taxpayers desire to pay as little tax as possible and try to find the way to avoid tax. One way to avoid tax liability is not to reflect taxpayers’ real income in tax returns when they submit tax returns to determine a tax liability. In order to cope with this problem, the tax agency has conducted the tax audit to review the genuineness of a tax return. It is commonly accepted that the tax audit is necessary for the fair and accurate taxation however the tax audit brings about anxiety even for an honesty taxpayer who believes his or her tax documents are perfectly in order. Moreover it is possible for the tax agency to infringe on taxpayers’ rights during the tax audit. To protect taxpayer from the possible infringement by the tax agency with regard to the tax audit, the legislation enacted Chapter Ⅶ-2, the provisions as to taxpayers’s rights in Framework Act on National Taxes in 1996. Advance notice of tax investigation provided in the Article 81-7 is a part of this Chapter. The Supreme Court held that advance notice of tax investigation by tax agency had the character of the administrative disposition which is one of requirements for law suit for the cancellation of the action taken by the tax agency. However it is thought that advance notice of tax investigation does not have the character of the administrative disposition. Advance notice of tax investigation is a mere notice to announce the future tax audit. The whole tax audit itself should be regarded as an administrative disposition. With a critical position toward the decision of the Supreme Court, this article will review the character of advance notice of tax investigation.