2021년 조세기본법 판례회고

This paper introduces four of the Korean Supreme Court decisions rendered in 2021 relating to the Framework Act on National Taxes and Framework Act on Local Taxes. Regarding the Framework Act on National Taxes, (ⅰ) the Korean Supreme Court ruled that where unlawful acts of a representative of a corporation or an employer, etc., other than a de facto representative, were done as part of criminal acts such as fraud, breach of trust, etc., the victim of which is the taxpayer, for the purpose of promoting his/her own or a third party’s interests against the interests and intention of the taxpayer and the taxpayer could not easily recognize or expect their unlawful acts as the other party to a transaction engaged therein, unfair under-reporting penalty tax may not be imposed upon the taxpayer on the grounds of the unlawful acts with regard to understated reports by unlawful acts based on the breach of trust of an employer, etc., but that such and unlawful acts based on the breach of trust of an employer, etc. are included in “unlawful acts” as referred to in long-term statute of limitations. (Supreme Court en banc Decision 2017Du38959 rendered on February 18, 2021). (ⅱ) The Korean Supreme Court ruled that where a person who has pledged his/her property to secure another's obligation to secure another's obligation lost his/her ownership of the collateral due to an auction held to exercise the right to collateral, but was unable to exercise his/her right to reimbursement due to the debtor's bankruptcy, it cannot be deemed as a ground for a subsequent refund claim under the Framework Act on National Taxes (Supreme Court Decision 2020Du53699 rendered on April 8, 2021). (ⅲ) The Korean Supreme Court ruled held that a “notice of change in income amount” did not constitute a “tax assessment notice" under the Framework Act on National Taxes, and thus, was not subject to pre-assessment notice, which mandates the taxpayer’s ability to request for a Review of Adequacy of Tax Imposition. (Supreme Court Decision 2020Du52689 rendered on April 29, 2021). Regarding the Framework Act on Local Taxes, the Korean Supreme Courtruled that if a person does not exercise direct influence over the management of a corporation but exercises influence through a relative, etc., a special relationship based on a management control relationship can be recognized only if such influence is evaluated as equivalent to that directly exercised by the person himself/herself, and reconfirmed that if a person with a special relationship with an existing oligopolistic shareholder received shares from the existing oligopolistic shareholder, but there is no change in the ratio of total shares owned by the existing oligopolistic shareholder and the new oligopolistic shareholder, the person cannot be subject to deemed acquisition tax. (Supreme Court Decision 2020Du49324 rendered on May 7, 2021)