국세기본법상 특례제척기간 규정에 근거한 재처분의 허용 범위 - 동일한 과세단위로 제한되는지를 중심으로 -

Although §26.2.2.1 of the old Act on National Taxes (before revision under Act No. 14382, Dec 12, 2016) (“regulation on special exclusion period”) was aimed to allow the same disposition beneficial to taxpayer, the Supreme Court decided that the re-disposition unfavorable to taxpayer by taxation authority under the regulation on special exclusion period is allowed, though they required identicalness of unit of assessment between previous and new dispositions. There has been a strong criticism by scholars that it is unfair to disallow re-disposition with only reason of change in unit of assessment. The dominant opinion was that the re-disposition under the regulation on special exclusion period should be determined carefully considering various factors including the ‘identicalness of fact’ and some lower courts used the identicalness of facts between previous and new dispositions as a standard to allow the re-disposition under the regulation on special exclusion period. A recent decision by Supreme Court (Decision 2017Du30757; 2020.8.20.) judged that the regulation on special exclusion period is not applied when there is difference in object of taxation and tax item between previous and new dispositions. Since the allowed range of re-disposition under the regulation on special exclusion period has significant effect on taxpayer and taxation authority, it is necessary to examine whether the criteria of the range is ‘identicalness of unit of assessment’ or ‘identicalness of fact’. Although some theories included res judicata, binding force, the meaning implied by the word ‘-according’ in legal text, and necessity of remedy by taxation authority in the factors to be considered in the allowed range of re-disposition, such factors have no actual role in determination of allowed range of re-disposition under special exclusion period. Since the allowed range of re-disposition is determined based on various factors including rational of taxation exclusion period, a stability in tax-law concerned, it is unfair to use ‘identicalness of fact’ as the criteria because it limits excessively the value of stability in tax-law concerned. It is reasonable, based on the consideration of various factors, to use ‘identicalness of unit of assessment’ as criteria to determine re-disposition as like judical precedent. In this regard, §26.2.2.1 of the revised Act on National Taxes by the Act No. 14382 (Dec 12, 2016) (“revised regulation on special exclusion period”) has no ‘according to -’ phrase. It should be considered whether the allowed range of re-disposition under revised regulation on special exclusion period is in the same context as the regulation on special exclusion period.