원천징수의무가 이행되지 않은 경우 과세관청이 취할 수 있는 조치에 대한 시간적 한계 ― 부과제척기간과 징수권 소멸시효 ―

Abstract

When a withholding agent does not fulfill his withholding obligation, the tax authorities can enforce the unperformed withholding obligation. This article discusses what type of statute of limitation (hereinafter “SoL”) can apply to such an enforcement under the Korean rules of tax procedure. It should be noted, as an important background information, that there are two different types of SoL in Korean tax law. The first type limits the tax authorities’ power to make a tax assessment, and the second type relates to the tax authorities’ power to collect the tax assessed (hereinafter, “Assessment SoL” and “Collection SoL,” respectively). The controversy arises because, under Korean law, it is understood for some theoretical reasons that the tax authorities are not required to make an assessment when a withholding agent does not fulfill his withholding obligation, but they may directly issue a “notice of payment” as a collection mechanism However, the enforcement decree of the Framework Act for National Taxes, perhaps erroneously, provide that its Assessment SoL (and not the Collection SoL) applies to such a notice of payment. This article discusses how to deal with this peculiar and perverse situation. Another unique feature of the Korean tax procedure in connection with withholding is that, in certain cases, the tax authorities make a special notice of “increase in taxable income” (hereinafter “SNI”) which gives rise to a withholding obligation. This article also discusses what type of SoL applies to the tax authorities' power to issue the SNI, taking into the consideration the relevant provisions of tax law and some recent Supreme Court decisions.