소득금액변동통지의 처분성과 부과제척기간의 기산일에 관한 소고― 대법원 2012. 9. 27. 선고 2012두12167 판결을 중심으로 ―

Abstract

The Supreme Court judged that an income tax imposition case toward plaintiff of taxation government office is an illegal disposition, because the exclusion period was elapsed from the conclusion time of tax obligation for the income earner. However, the problem is not a simple case as it looks. The main disposal of the tax government office is that the alteration of an income amount notice and an imposition disposition was lawfully within the imposition exclusion period. However, after the company could not pay for the tax, the tax government office did imposition measure toward the plaintiff who legally belonged to the income. Contrary to a general case, there is an additional action of tax government office which is called 'The Alteration of Income Amount Notice'. Therefore, the writer of this paper began asking questions if it is appropriate about the second trial and the Supreme Court have judged excluding argument of the government office because it just elapsed the exclusion period without any consideration about those circumstances. The judgement of the first trial judged that imposition disposition is legal because the alteration of an income amount notice and an imposition disposition were within the imposition exclusion period. It is different from the second trial and the Supreme Court's judgement. This paper investigated tax rules about imposition exclusion firstly, and examined relations between starting point of the disqualified day and the time of the formation of tax liability for finding the answer about when should be the starting point of disqualified day if the Supreme Court's judgement is inappropriate. Moreover, this thesis(paper) was developed to reach a conclusion after reviewing of influence on the corporation and the belonging of income by the supreme court decision what presumed the disposal of the alteration of income amount notice and researching confrontation of opinions about the starting point of disqualified day of imposition exclusion period. On examination, it is confirmed that a taxable income is not confirmed only latent income before disposition of income, and income disposition of the deemed salary about an income outflow, whose accrual is unclear, cannot be postulated because provision of law deal with belong of income itself. Therefore, it cannot be appropriate that an exclusion period of the right to impose is progressed on the state that the duty of tax payment is not established; hence, it is regarded that there is an illegality on the judgement of the Supreme Court. Therefore, imposition exposition period of the tax liability for the belonging of income is charged from the time of income amount change notifying. Similar to the judgement of the first trial, as imposition disposition of the tax government office is set up before elapsing imposition exposition period, it should be regarded to appropriate.