후발적 경정청구 사유가 발생한 경우 법인세법상 손익의 귀속시기에 관한 소고- 대법원 2020. 1. 30. 선고 2016두59188 판결을 중심으로 -

Abstract

This article deals with the timing issues of gains or losses under the Corporate Tax Act in the event of a claim of reassessment by later occurring reason, using the recent Supreme Court precedent as a subject for discussion. According to this paper's argument, it is more appropriate in terms of tax theories to think that the assertion of prospective application is more reasonable, not retrospective law. This is because of the following reasons: 1) the claim of rights is an important exception for general principles in regard to timing issues for profit and loss, 2) the prospective application approach is much better in terms of procedural efficiency; 3) Although the retrospective application approach has also merits for the tax return, that is not consistent with the basic principles of taxation. In principle, the Supreme Court of Korea is leaning toward the retrospective application approach on the choice between prospective application and retrospective application. Even if the Supreme Court accepted retrospective approach, it should fully take account of the differences derived from the choice between prospective and retrospective approaches under the corporate taxation. In addition, the Supreme Court should consider exceptions to the retrospective application regarding what would fall within the scope of "special circumstances." In other words, additional refund for tax are paired with unpaid taxes in terms of delayed interest, where there are differences in terms of debt reduction provisions. Thus, the Supreme Court should hold the decision requiring ambulatory interpretation of precedents to the extent that corrects this systemic imbalance for the taxation. The decision belongs to a case where it is difficult to expect a tax refund for tax authorities such as concerns over the expulsion period in the future, while the reasons for taxpayers paying late was not fixed yet. This decision was held without sufficient legal arguments on this point, although there is much room to be considered for claim of reassessment by later occurring reasons because it could belong to the so-called "special circumstances."