‘적법하지만 부당한 과세처분’의 의미와 그 취소 가능성 ―‘한국형 형평면제처분’의 근거로서 국세기본법 제55조의 기능―

Article 55 of the Framework Act on National Taxes prescribes that, at the stage of appeal to the tax authorities and to the Tax Tribunal, not only unlawful assessments under tax law, but also unjust assessment may be cancelled. Further, the Supreme Court recognizes the possibility for an unjust assessment to be cancelled at the stage reviewing the adequacy of a tax assessment prior to its issuance. However, the author is of the view that to this date, the concept of an “unjust assessment” under tax law has not been substantially reviewed. In this article, the author attempts to review whether it is possible to discuss the question of “unjustness”, commonly an issue with discretional acts, in relation to tax assessments which are typical binding acts. The author then intends to clarify the question of whether it is possible to cancel such unjust tax assessments. The conclusions of this article are as follows： First, an “unjust assessment” means an “assessment which contradicts equitable taxation or the purpose of the relevant provision and as a result infringes upon the taxpayer’s property right, but not to the extent that it is considered an unlawful assessment”. Second, the concept of unjust assessments merits review and discussion in cases where it is not possible to cancel the tax assessment through interpretation of the relevant tax provision in light of its purpose. Main examples are cases of errors or omissions in the legislation. Third, under the interpretation of the Framework Act on National Taxes, it is possible to cancel a tax assessment by reason of unjustness (as opposed to unlawfulness) during the stages of appeal to the tax authorities, or the Tax Tribunal, as well as the stage of reviewing the adequacy of a tax assessment prior to its issuance. Further, through effective and appropriate use of these proceedings, it will be possible in part to reap the same effects as implementing the German “equitable tax relief” system which is being discussed among academia. Fourth, with regard to the proceeding reviewing the adequacy of a tax assessment prior to its issuance and appeals to the tax authorities, the heads of tax offices, the commissioners or regional tax offices, as well the commissioner of the National Tax Service are required to decide in accordance with the resolution of the National Tax Commission. In the case of appeals to the Tax Tribunal, decisions are made through meetings of the adjudicators. This decision making structure which makes use of consultative groups can have the primary function of preventing abuse of cancellation of unjust tax assessments by preventing the cancellation of tax assessments at the arbitrary hands of a few select officials in charge. Also, the publication system of the written decisions in the proceeding reviewing the adequacy of a tax assessment prior to its issuance, and appeals to the Tax Tribunal can further have the function of preventing abuse of cancellation of unjust tax assessments. In this regard, as a legislative measure, it will be necessary to grant the heads of tax offices, the commissioners or regional tax offices, as well the commissioner of the National Tax Service differing levels of authority (e.g. differing in accordance with the volume of the tax amount at issue etc.) to cancel “unjust assessments” at the stages of proceedings reviewing the adequacy of a tax assessment prior to its issuance, and appeals to the Tax Tribunal. It would further be appropriate for the legal basis for publishing the text of the decisions in the proceedings reviewing the adequacy of a tax assessment prior to its issuance, and the decisions of the Tax Tribunal to be legislated as part of legal statute rather than in internal regulations as currently. A legal provision serving as the basis for publishing the decision in appeals to the tax authorities, which is currently missing, should also be legislated. Fifth, ultimately, we will have to make efforts to include assessments which are being discussed as “unjust assessments” in the scope of “unlawful assessments” by broadening the scope of application of Article 18(1) of the Framework Act on National Taxes. In other words, “making unjustness unlawful” is an important task that will have to be pursued in the realm of tax law interpretation on a long-term basis. The possible cancellation of unjust assessments discussed in this article will be able to serve the function of broadening the scope of taxpayer relief during the transition period until “making unjustness unlawful” has been conclusively completed.