課稅豫告 通知 누락과 課稅處分의 節次的 違法 여부 - 大法院 2016. 4. 15. 선고 2015두52326 判決을 中心으로 -

Abstract

Recently, the Supreme Court has ruled consecutively that the disposition of tax imposition of taxing authorities that do not observe the taxation procedure properly is illegal, emphasizing the procedural legality in disposition of tax imposition. For example, in relation to the investigation for taxable income, the Supreme Court declared, that selecting an individual or organization as subject of investigation for taxable income, despite the absence of any reasons for selecting an individual or organization as subject of investigation for taxable income, is a violation of the rule of having to comply with the legal procedures; interpreted the extent of reinvestigation prohibited in accordance with the framework act on national taxes in a broader sense; or declared that the taxation that is based on the materials for tax assessment collected through investigation for taxable income is illegal, if such an investigation for taxable income was conducted for unjustifiable purposes, rather than for its original purpose of collecting the materials for taxation or verifying the accuracy of the contents that were reported. On the other hand, the Supreme Court handed down a sentence, on an extension of such a ruling, on whether the taxation that has recently been executed without advance notice of taxation is illegal or not (hereinafter, ‘the ruling’). Accordingly, this paper analyzed the ruling that has recently been sentenced. The Supreme Court ruling showed in the ruling mentioned above, that taxation without giving any chance to request the pre-assessment review to taxpayer without advance notice of taxation, as mentioned above, is a violation of procedural rights of taxpayers and thus illegal as it has a grave procedural flaw. The ruling is on an extension of the consistent judicial precedents by the Supreme Court emphasizing the procedural justification in the recent cases of disposition of tax imposition. The ruling is valid, in conclusion, in that the principle of legal procedures under the constitution must be observed in tax administration, too. In the first place, even if there are disposition instructions or requirement for correction as a result of audit by the Board of Audit and Inspection of Korea, the dependent must give advance notice of taxation to plaintiff to give an opportunity to request the pre-assessment review. Thus the omission of advance notice of taxation procedure is illegal and has a grave procedural flaw. In addition, the pre-assessment review is significant in that it is a proactive and preventive remedy for violation of private right on taxation. Since the Supreme Court judged that the above taxation case was a violation of procedural rights of taxpayers if the taxation was enforced before the taxing authorities’ claim of pre-assessment review or subsequent decision after giving the advance notice of taxation after the ruling mentioned above and the procedural flaws were grave and evident and thus nullified, it is reasonable to see the ruling as nullified as it omitted the advance notice of taxation. Therefore, the flaws in the ruling mentioned above must be considered as grounds of nullity. If the defendant requests re-disposition after supplementing the flaws after the ruling, this is legitimate, but if the period of exclusion lapsed. the request would be allowed within one year of special period of exclusion. But, in de lege ferenda, it is thought that the provisions on special period of exclusion of item 1 of Para. 2 of Art. 26-2 of the Framework Act on National Taxes that can be applied to repair flaws if there are any procedural flaws like in the ruling above should be deleted.