세무조사 및 과세전적부심사 절차의 하자와 과세처분의 위법성-대법원 2023. 11. 9. 선고 2020두51181 판결을 중심으로-

This paper examines how a procedural defect in a tax audit can affect the lawfulness of the tax assessment issued as a result of the tax audit through an analysis of Supreme Court Decision 2020Du51181, November 9, 2023 (the “Supreme Court Decision”). This paper also reviews the related issue of whether the tax authority can cure such procedural defect in a tax audit and subsequently issue a new tax assessment for the same item (“reassessment”). The conclusions of this paper can be summarized as follows. First, one of the issues is how to set the standards as to when certain defect in a tax audit should be viewed as a major defect rendering the tax assessment issued as a result of that tax audit unlawful. A defect caused by a violation of the Framework Act on National Taxes should in principle render the relevant tax assessment unlawful. On the other hand, for a defect caused by a violation of the guidelines for the National Tax Service, it is reasonable to view such defect as not constituting a ground to deem the relevant tax assessment unlawful, regardless of whether the provisions in the guidelines are recognized as having the binding force of law or not. According to these standards, the conclusions reached in the Supreme Court Decision - (i) the defects caused by the tax authority’s failure to notify the expansion of the scope of tax audit and failure to provide an opportunity to request a Pre-assessment review constitute a ground for deeming the tax assessment unlawful, although (ii) the defect caused by the tax authority’s failure to comply with the tax audit result notification period does not constitute a ground for deeming the tax assessment unlawful - are reasonable. Second, upon the amendment of the Framework Act on National Taxes on December 19, 2017, the provision on the tax audit result notification period was transferred from the Regulations for Tax Audit Procedures (guidelines for the National Tax Service) to the Framework Act on National Taxes. As a logical continuation to the conclusion above, if the tax authority fails to comply with the tax audit result notification period after the December 19, 2017 amendment of the Framework Act on National Taxes, it should be viewed as constituting a ground for cancellation of the relevant tax assessment (unlike the Supreme Court Decision), unless there are exceptional circumstances. Third, if a tax assessment has been declared invalid or cancelled due to a procedural defect in the relevant tax audit, an issue arises as to whether the tax authority can cure the procedural defect and issue a reassessment. Whether there is a procedural defect in a tax audit or the tax authority fails provide a taxpayer with an opportunity to request a Pre-assessment review, it should be viewed that the tax authority is not allowed to issue any reassessments.