당초처분과 증액경정처분 사이의 실체적, 그리고 소송상 관계에 관한 고찰

On Legal Relationship between Initial Tax Assessment and Additional Taxes through Corrective Disposition under The Korean Tax System The Supreme Court of Korea in 2009 rendered a decision on the legal relationship between initial tax assessment and additional taxes through corrective disposition (the “Decision"), which had long been subject to hot debates within the community of tax law experts in Korea. The National Congress in 2001 had added Article 22-2 to the Framework Act on National Taxes with an intention to put a stop to the controversy, but it had been suggested that there were still many issues to be settled by the Supreme Court with respect to the interpretation and application of the aforementioned Article. The Decision is regarded as the first attempt by the Court to address such issues. This article mainly asserts that, although the initial assessment and the corrective disposition (or re-assessment, if literally translated) are undeniably separate government actions, the court may deem them to constitute a single tax assessment, if necessary, to try them within a single procedure. The court needs this legal fiction, because ⅰ) the position has been widely accepted that, as a rule, there should be only one case for each tax liability, and ⅱ) the court is believed to have broad discretion to set its own procedural rules. This article tries to solve the aforementioned controversy and appreciates the Decision in light of the above main assertions. Review of another relevant issue follows. Under Korean tax litigation system, a taxpayer must file its complaint within 90 days from the date of receiving the tax assessment. Otherwise, he would forfeit his right to dispute the tax liability. If the taxpayer forfeited his right to dispute, but subsequently the tax authorities levy additional taxes through corrective disposition, which the taxpayer on this time decides to dispute, can the court review the portion of the tax levied through the initial tax assessment? This has also been an unsettled issue under the new Article 22-2 and this article tries to identify whether the Decision touched the issue at all, and if so, what was the position taken in the Decision on this issue. Finally, this article points out that, thus far most of the commentators have attempted to give answers to the foregoing issues by relying on such terms as “absorption" (of the initial assessment into the re-assessment) or “co- existence" (of both assessments). This article questions whether such ap- proaches based upon abstract terms that are devised by the commentators without any statutory bases are methodologically correct and suggests that it is a better approach to focus on the statutory provisions that are relevant on an issue-by-issue basis, than applying either the “absorption" or “co-existence" theory with consistency, which is artificial and unjustified.