전심(前審) 기관의 재조사결정을 둘러싼 최근의 쟁점들 검토 ― 판례와 2016년 말에 개정된 국세기본법 조항들을 중심으로 ―

The so-called “decision for review” in Korean administrative appeal procedure in tax cases has long been widely used in practice. This type of administrative decision consists in requiring the tax authorities that have issued the tax assessment in question to review and further investigate the relevant facts and accordingly, either maintain or reduce the foregoing assessment. The lack of clear statutory basis and the ensuing obscurity in its exact contents and contour had long bedeviled both tax practitioners and commentators until the 2010 landmark decision by the Supreme Court of Korea and the following 2016 amendment in the Framework Act for National Taxes settled many of the complicated practical and theoritical issues. This article is, however, intended to revisit and discuss “the decision for review” against the foregoing new backdrop. At this juncture, this article re-evaluates the validity of the arguments presented in the aforesaid 2010 Supreme Court decision and relating case law, and attempts to give some detailed guidance as to how the new provisions inserted in the aforesaid 2016 amendment should be interpreted and implemented by appeal tribunals and courts. Notes should be taken, in particular, that under this 2016 amendment, the measure taken by the tax authorities following the decision for review may once more become subject to a new review by the same appeal tribunal that issued the foregoing decision. This is not in line with the prior practice established under the case law and the preceding 2014 amendment of the Framework Act for National Taxes. Hence the question of how the renewed review process at the appeal tribunal should be conducted must be carefully examined and analysed under a holistic approach with full consideration of its interaction with the following judicial procedures, which task the author has attempted in this article to fulfill. Another issue that is intensively discussed in this article is whether the tax authorities are allowed to increase its tax assessment after receiving a decision for review. This is admittedly a controversial issue where commentators largely disagree with one another. This article submits that such increasement is not consistent with the mandate given by the decision for review and thus unlawful so that it should not be allowed. This does not apply, however, to an increasement in tax assessment based on issues other than the one dealt with in the decision for review, the validity of which then depends on whether such a new assessment and the preceding examination of new facts (i.e. tax audit) meet the relevant legal requirements.