2014년도 국세기본법 및 부가가치세법 판례회고

The purpose of this review is to analyze five precedents in 2014 involving the Framework Act on National Taxes and two precedents involving the Value Added Tax Act judged by the Supreme Court, and to assess their significance. Supreme Court Decision 2013DU18810, which was decided on January 29, 2014, is the case that approved claim for reassessment by later occurring reasons for the accounts that cannot be collected under Article 25-2 (iv) of Enforcement Decree of the Framework Act on National Taxes. With this, it can be seen that the Supreme Court’s interpretation of the said provision exceeded the scope of the possible meaning of its text. Supreme Court Decision 2012DU28254, which was decided on November 27, 2014, made it clear that claim for reassessment by later occurring reasons under Article 45-2 (2) of the Framework Act on National Taxes is not allowed even with the presence of a court decision that changed the existing interpretation of Act and subordinate statute. This decision appears to maintain the position held by previous conclusions. Meanwhile, Supreme Court Decision 2013DU18810, which was decided on January 29, 2014, extended the scope of possibility of claim for reassessment in spite of the provision, however, the above decision interpreted the provision faithfully. It is necessary to have clear standard of condition whether claim for reassessment by later occurring reasons can be issued or not. If only individual judgement be focussed without suggesting standard, it would lower the predictability. Supreme Court Decision 2013DU19516, which was decided on February 27, 2014, is the first decision that expressly established knowledge of the resultant tax evasion as a subjective requirement for recognizing “fraudulent or other unlawful means,” which is one of the grounds for the application of the extended period of limitation for imposition. In this decision, the Supreme Court held that making a false document and the resultant tax evasion do not always result in an extended period of limitation for imposition. In Supreme Court Decision 2012DU911, which was decided on June 26, 2014, the court held that a defective selection of a target of tax investigation renders a taxation based on such an investigation illegal. Under the succession of defect theory, the decision to commence a tax investigation itself would have to be contested. However, it is the Supreme Court’s unwavering position that taxation based on a redundant tax investigation is illegal. On the same logic, it can be concluded that an illegality of a tax investigation can be used to challenge a taxation based on such an investigation. However, it is too early to generalize such a conclusion to include all types of substantive or procedural illegalities related with tax investigation as grounds for recognizing illegal taxation. Supreme Court Decision 2011DU14227, which was decided on July 24, 2014, is the first decision that held that a person who receives income as a result of a disposition of income cannot challenge the notification of income amount change directed at him/herself. In this decision, the Supreme Court appears to have determined that it would be more advantageous for a taxpayer to challenge the imposition of the income tax and argue the illegality of the notification of income amount change, rather than to challenge the notification itself. Supreme Court Decision 2011DU9935, which was decided on May 16, 2014, allowed for application of “actual taxation” with regard to value added taxes. However, actual taxation should be more rigidly applied when it comes to value added taxs for the following reasons：ⅰ) it is the “substance of transaction” that holds relevance when determining value added taxes；ⅱ) transaction collection and issuance of tax invoice are conducted for each individual transaction, and；ⅲ) taxation on transactions between business operators does not make much difference because of the deduction of the input tax amount. Supreme Court Decision 2013DU18827, which was decided on January 16, 2014, is the first decision that held that a goodwill is an “intangible article with property value”；that is, goods traded through transactions subject to value added taxation. Goodwill is neither a thing nor a right because “consideration for goodwill” is nothing but a title imposed on a premium paid in expectation of the future prospect of earning more money. In light of the above, the basis for this decision laid down by the Supreme Court needs to be reconsidered. However, if the fact that the amount received as consideration for goodwill should be included in the value of supply, the amount of tax imposed would ultimately be the same.