과세처분과 납세의무 신고의 위법, 그리고 후발적 경정청구의 사유 간 관계

Abstract

According to the Basic Framework Act for National Taxes, taxpayers in Korea, who have over-reported their tax liabilities are entitled to file a petition for rectification within five years after the lapse of the period for submitting tax returns. The petition in this sense is called the (ordinary) “petition for re-assessment” (hereinafter either “PR” or “OPR”). Another type of PR is available to taxpayers, when one of the qualified incidences has occurred that affects their outstanding tax liabilities. This is allowed within three months after the relevant incidence has occurred. The latter type of PR is called the “PR ex post,” which lies in the heart of the discussion in this article. Against this backdrop, this article discusses various implications that the PR ex post, of which the scope of application has of late rapidly expanded to a remarkable extent under the Supreme Court case law, has in the general theoretical framework of tax controversies in Korea. After analyses and discussions over various technical procedural issues relating to litigations over OPR, PR ex post and the like, this article points out that the legal concept that is compromised when a PR ex post is accepted, is none other than the statutes of limitation that prohibit taxpayers from filing appeals against tax assessments or his or her own tax returns. This obvious aspect of the PR ex post is, however, often not fully appreciated, partly because taxpayers who are in a position to file PR ex post tend to raise the issue at the already pending lawsuits, rather than to file a separate PR ex post. In such cases, the court examines the relevant incidence (not as a cause for a separate filing of an PR ex post but) in the context of ordinary review of the “legality” of the tax assessment or tax returns at the already pending lawsuit, which is a practice long legitimized by the Supreme Court. This trend might have encouraged the current trend of expansive interpretation on the statutory provisions allowing use of the PR ex post. Considering the general understanding that the rules on the foregoing statutes of limitation constitute, for the sake of legal certainty, one of the important backbones of the whole theoretical framework of Korean tax controversies, however, this article suggests that the current trend of expansive reading of the statutory provisions on PR ex post should be carefully re-examined. In this regard, this article calls for more robust theoretical frameworks of general nature that delineate the exact scope of application of PR ex post. It is intended and hoped that the analyses and discussions of diverse technical issues contained in this article may serve as cornerstones for such subsequent studies.