원천징수의무자에 대한 납세고지의 법적 성격에 관한 연구

According to Article 21, Paragraph 3, Item 1 and Article 22, Paragraph 4, Item 2 of the Framework Act on National Taxes(‘the Act’), the national tax liability for income to be withheld shall come into existence at the time when the person or entity having the obligation to withhold tax on income (‘withholding obligator’) makes the payment of income to a taxpayer who derives the income, and shall be determined without the application of special procedures to determine the liability. As such, the academy and court decisions have acknowledged a firm position that a tax notice to a withholding obligator is to urge payment of national tax that has already been created and determined by the tax law and accordingly it should constitute an enforceable collection of tax not an enforceable assessment of tax. On the other hand, the Ministry of Strategy and Finance issued an administrative interpretation, assuming that a tax notice to a withholding obligator is not the enforceable tax collection but the enforceable tax assessment. This administrative interpretation presents different viewpoints from the existing conventional views or court decisions on the nature of such notice and has brought to public attention several issues, such as the legal nature of tax notice to a withholding obligator, legal issues in terms of taxation procedures concerning the creation and determination of tax withholding and perspectives regarding the reassessment request system in relation to the introduction of reassessment request for tax withholding in 2003. This paper examines characteristics and problems of the automatic determination of tax liability among various aspects of tax laws concerned in relation to the withholding, and then focuses on evaluating the legal nature of tax notice to a withholding obligator, in other words whether it should constitute the enforceable tax assessment or the enforceable tax collection in substance. In conclusion, there is a possibility that such notice can be understood as an enforceable tax assessment by the interpretation of the Act. Notwithstanding such possibility, however, it is reasonable to consider that the tax notice issued by the tax authorities subsequent to the creation and determination of tax liability constitutes an enforceable tax collection since the tax liability for national taxes to be withheld shall be created and determined at the point of the payment of income subject to withholding tax. In addition, this paper suggests possible legislative improvements to ease excessive burden placed on withholding obligators and administer multiple schemes under the Act in a consistent manner.