법령해석에 다툼이 있는 경우 과세관청의 위법한 과세처분에 있어 무효사유 인정 문제 ― 대법원 2018. 7. 19. 선고 2017다242409 전원합의체 판결의 판례 평석 ―

The Supreme Court of Korea has maintained the opinion that both importance and clearance are needed to application of nullity on defective administrative disposition at almost cases. The Supreme Court rendered a decision(2017Da242409, “Subject Decison”) on July 19th 2018 and the Subject Decision confirmed the supreme court’s original opinion that the defect of taxation(although the tax authority imposes tax with misinterpretation on the provisions) is not clear, when there is a dispute of interpretation on the Administrative Act and when it is not obvious whether the provisions of the Act cannot be applied to legal or factual relationships. It is regrettable to say that the Subject Decision maintains the theory of importance and clearance even about the taxation, in the midst of many criticisms on maintaining the theory about the general administrative disposition. Hence, this article will analyze and criticize the Subject Decision in support for the Theory of alleviated clearance. The first issue on the Subject Decision is whether the defect of taxation is regarded as cancellation or nullity, when tax authority overimposes tax to tax payers than a legitimate tax amount by misinterpretation of the Tax Act. And second issue on it is whether the degree of defects present in each taxation is different or not, before and after the supreme court’s decision on interpretation on a provision of the act. In this respect, the defect of taxation should be considered as the nullity when the tax authority imposes tax with its misinterpretation on a provision of the Act. In this way, the conclusion would not be changed before and after the supreme court’s decision on the issued provision of Tax Act. Unlike general Administrative Act relationship where trust protection of the third party matters, Tax Act relationship is just ‘the bond debt relationship’ between the government and tax payers. And the taxation of tax authority also has just meaning of confirming procedure on tax payer’s statutory duty. Therefore, unless trust protection of the third party matters, it would make sense to relax the requirement of clearance on evaluating the defect of taxation. I hope the supreme court’s decision will turn to more progressive way in the future.