증액경정처분과 감액경정처분을 차례로 받은 납세자가 증액경정처분의 취소소송에서 취소를 구할 수 있는 범위에 관한 고찰―대법원 2011. 4. 14. 선고 2010두9808 판결

This Article reviews a decision rendered on April, 2011, by the Supreme Court of Korea. Under the currently prevalent theoretical frame, it is sometimes surprisingly difficult to determine the scope of review by court in a tax litigation case. This is mainly due to the existence of the traditional legal concept of “administrative act,” or Verwaltungsakt in German literature, by which a tax liability is legally “established.” This concept loses no importance in the area of tax litigation, where taxpayers in most cases are required first to identify relevant tax-establishing “administrative acts,” and then file lawsuits to have them cancelled. Thus the issue gets particularly complicated when the tax authorities amends their initial tax assessment, irrespective of whether the amendment increases or decreases the tax liability, because both the initial assessment and the subsequent amendments are qualified as “administrative acts.”There was always much controversy on the issue among both tax practitioners and academics, and the controversy has just entered into a new phase with the enactment of a new statutory provision in the Framework Act on National Taxes. Against this background, the Supreme Court of Korea has recently issued a series of new decisions on the “scope of review” issue. Among those new decisions, this Article discusses a case where the tax authorities first increased, and then decreased, its Initial Tax Assessment.