과세처분 당연무효 판단기준으로서 중대명백설에 대한 소고

Abstract

This paper addressed the Supreme Court cases on the basis of the distinction between the cause for revocation and the cause for invalidation of tax assessment, and critically examined the theory of importance and clearance as the criteria for invalidation of tax assessment. To sum up, the legal relationship between the National Tax Service(the NTS) and the taxpayer is easily distinguished from the legal relationship between general administrative agencies and the citizens, as the effect on the public or third party is limited even if the tax assessment is cancelled, and the restoration can be made easily through a tax refund. Especially, as shown below, there is a need to apply various criterias for determining the cause for revocation and the cause for cancellation depending on the type of case. First of all, it is necessary to impose more disadvantages if the NTS, which has a high degree of expertise in interpreting the statute, has misinterpreted the interpretation of the statute, rather than misinterpreted the facts under the taxpayer's area. In cases where the NTS has far higher expertise than the taxpayer, it is reasonable to recognize the taxpayer's rights relief more broadly. In addition, even in the case of defects related to the determination of facts, it is necessary to vary the criteria according to the type of case, such as whether the information is in the territory of the taxpayer or the NTS. NTS are given the right to question and investigate, and the NTS’ authority to access and collect information is being strengthened gradually, and taxpayers are not always superior to the NTS. In such a case where the facts can be judged more easily by the NTS, it is reasonable to apply the duty of investigation and consider it as invalid if failed to fulfill the duty of investigation to the extent that is normally required for the NTS.