부과과세방식인 상속세 및 증여세의 세무조사 대상 선정에 관한 검토

Since the method of determining tax liability for inheritance tax and gift tax is ‘government-assessment’ and ultimately the tax office has to determine the tax amount, there may be an idea that the tax office should be able to relatively easily look into things like the existence of inherited or gifted property. In fact, Article 81-6, Paragraph 4 of the Basic Act on National Taxes(hereinafter “BANT”) separately stipulates that tax investigation is possible for taxes for which the tax office makes an ‘investigation and determination’ regarding the tax base and the tax amount, without requiring a specific reason for selecting the subject of the tax investigation. However, the fact that inheritance tax and gift tax, which are belong to relatively private and free areas, use the government-assessment method and thus can be more easily investigated than other taxes, seems to increase the possibility of raising concerns that privacy and freedom of taxpayers may be excessively violated, at least theoretically. Based on these circumstances, this paper will examine the issues related to the application of Article 81-6, Paragraph 4 of the BANT to inheritance tax and gift tax. First, the ‘investigation’ in ‘investigation and determination’ under Article 81-6, Paragraph 4 of the BANT seems to have had an independent aspect in light of its history, and it also seems to have been basically an investigation into a tax return. Thus, it can be thought that the concept of ‘investigation and determination’ is a concept that was familiar to the government-assessment method from the beginning. Currently, however, the Inheritance Tax and Gift Tax Act(hereinafter “ITGTA”) has a separate concept of ‘determination by the tax return’ which is seen as the counterpart to ‘investigation and determination’ and seems to be an attempt to get quite close to the self-assessment method(although the imposition tax method is maintained). Thus, cases where a tax return of inheritance tax or gift tax is submitted and the tax office makes ‘determination by the tax return’ are difficult to be included in the concept of ‘investigation and determination.’ In effect, in cases where the tax office makes ‘determination by the tax return,’ it seems that Article 81-6, Paragraph 4 of the BANT cannot be applied. On the other hand, if no tax return is submitted on inheritance tax or gift tax, Article 81-6, Paragraph 4 of the BANT may be applicable, but even in such a case, there is a possibility that the restriction with regard to the ‘counterpart’ to the exercise of the right to question and investigate under the ITGTA applies in order to be selected as a subject of tax investigation. There may be conflicting opinions on this matter, but considering the premise of Supreme Court Decision 2012du911(Jun. 26, 2014), it seems understandable that such restrictions are imposed, and if such restrictions are not imposed, then in extreme cases, it could lead to the logic that anyone can be subject to a tax investigation without any particular reason or standard. In this regard, in Supreme Court Decision 2021du32088(Mar. 12, 2024), which is a relatively recent one, a relatively recent Supreme Court decision dated March 12, 2024, 2021du32088, regarding a case in which the legality of selecting a subject of tax investigation in a situation where there was no tax return submission on gift was in question, it was ruled that in order to be the subject of a tax investigation under Article 81-6 Paragraph 4 of the BANT, one must be the counterpart to the exercise of the right to question and investigate as stipulated in Article 84 of the ITGTA.