재조사결정, 그리고 그 후속 처분에 대한 통제

Re-audit decision is a type of decision that has been practically utilized for a long period of time by the Tax Tribunal in the case where additional verification and comparison for individual evidence are required for final determination or in the case where a taxpayer files a new claim or submits evidence at the stage of tax adjudgment. There have been a lot of controversies over the issue regarding the statutory basis in the Framework Act on National Taxes for re-audit decision and the unpredictable lapse of period for bringing litigation. However, the full bench ruling rendered by the Supreme Court in 2010 recognized the validity of re-audit decision as it considered it to be a kind of altered decision, and the Court also deemed that the starting date for reckoning the period of bringing a litigation is the date of receiving the notice of subsequent dispositions, thereby considerably contributing to solving the controversy. Now that the validity of re-audit decision has been recognized, there is a need to appropriately control subsequent disposition following the re-audit decision in the aspect of efficiency of tax lawsuit procedures. There may be two types of control regarding subsequent disposition：the control by the Tax Tribunal and the control by the Court. But it in fact has become difficult for the Tax Tribunal to control subsequent disposition through using the request for re-adjudgment due to the recent revision of the Framework Act on National Taxes. As such, it is currently only possible for subsequent disposition to be controlled by the Court. With respect to the logic applicable to subsequent disposition control, what matters is whether the repeated audit per se, which follows the re-audit decision, goes against the principle of prohibition of re-audit and whether it violates ‘verbot der reformatio in peius’ (i.e. ‘the principle of prohibition of disadvantageous modification’) in the case where subsequent disposition is to conduct reassessment to increase taxes. It should be considered that the applicability of the principle of ‘verbot der reformatio in peius’ has become more expanded than before after the full bench ruling delivered by the Supreme Court. However, given the subject of tax appeals, what matters more is whether the binding force of the re-audit decision is recognized and what the scope of the effect of such re-audit decision may be, etc. According to the full bench ruling by the Court, which combines the re-audit decision and its subsequent disposition into one decision rather than separately treating them, it might seem difficult to separately recognize the binding force of the re-audit decision from its subsequent disposition. However, it is reasonable to recognize the binding force of the re-audit decision in light of the fact that the purpose of the full bench ruling is to address the issue of lapse of period for bringing litigation and therefore concerns the external effect of the re-audit decision in the relationship between the administration and the judiciary whereas the effect of sentence of the re-audit decision for the purpose of controlling its subsequent disposition is an internal matter within the administration (i.e. the ruling authority and the disposition-making authority). In order to appropriately control subsequent disposition, the binding force of the re-audit decision should be recognized on a broad range. In addition, although there are many opinions that the possibility of abuse of the re-audit decision itself, which is made by the Tax Tribunal, needs to be controlled through the legislation, given the nature of the re-audit decision as an altered type of a decision, the incomplete nature of the legislation per se, and the possibility for another controversy to result from such new legislation, more careful approach would be needed.