당초 과세처분과 증액경정처분의 관계에 대한 연구 -대법원 2009. 5. 14. 선고 2006두17390 판결 평석-

Abstract

The relation between originally-determined assessment and reassessment to increase tax amount affects many aspects in taxation including subject-matter of a lawsuit, scope of trial, period of filing lawsuit, and disposition on default. Regarding to the relation between originally-determined assessment and reassessment for correction, there were diverse opinions such as parallel theory, absorption theory, paralleled absorption theory, reverse absorption theory, and paralleled reverse absorption theory. The Supreme Court decisions viewed that the originally-determined assessment is absorbed into the reassessment, or corrective disposition, therefore taxpayers should not appeal the originally-determined assessment, but should the reassessment. To cope with the above decisions, Article 22-2(Effect of Correction, etc.) of Framework Act on National Taxes was legislated in December 18, 2002. It says that "Any correction which causes an increase in a tax amount determined originally under tax-related Acts shall not affect the relation of rights and duties under such tax-related Acts, including this Act, with respect to such tax amount originally determined." In spite of the enactment of the above article, the dispute about relation between originally-determined assessment and reassessment to increase tax amount was not resolved until Supreme Court Decision 2006Du17390 delivered on May 14, 2009, which declared the original tax return or determination is absorbed into the disposition for correction, thus only the latter can be object of appeal by taxpayers. However, taking into account the facts that originally-determined assessment and assessment is made separately and the legislative intent of Article 22-2 of Framework Act on National Taxes should be regarded, I don't agree with the absorption theory. Then, it should be that the original determination is not absorbed into the reassessment to increase tax amount, which results that both are combined to make an single assessment which can be the object of appeal. Further, though time for appeal to original determination is lapsed, court can review the original determination to judge whether total tax amount is correct or not.