국세기본법상 신의성실원칙의 새로운 좌표 설정에 관한 시론(試論) ―과세관청에 대한 신의성실원칙 적용 논의를 중심으로―

As the Framework Act on Public Administration serves as a foundational set of general rules for administrative law, it inevitably has both a direct and indirect impact on the interpretation and application of tax law. Consequently, an analysis of the relationship between the Framework Act on Public Administration and tax law is necessary. This paper examines the principle of good faith and the principle of protection of legitimate expectations. The key points of discussion are summarized below. For the purposes of tax law, the application of the principle of good faith in respect of the tax authorities has often not been clearly distinguished from the application of the principle of protection of legitimate expectations. However, the Framework Act on Public Administration explicitly differentiates between the principle of good faith and the principle of protection of legitimate expectations. A review of previous discussions concerning the application of the principle of good faith in respect of the tax authorities under the Framework Act on National Taxes reveals that they, in fact, pertain to the principle of protection of legitimate expectations as defined in the Framework Act on Public Administration. Therefore, the relevant legal basis should shift from Article 15 of the Framework Act on National Taxes (Good Faith and Sincerity) to Article 12 of the Framework Act on Public Administration (Principle of Protection of Legitimate Expectations). This shift will re- conceptualize the framework for the discussion on the application of the principle of good faith in respect of the tax authorities, and create a conceptual gap for the discussion on the application of the principle of good faith under the Framework Act on National Taxes, one that requires further examination and development. The application of the principle of good faith in respect of the tax authorities can prima facie be categorized into cases to which the principle of consistency (principle of no contradictory behavior) applies and cases to which the principle of prohibition of abuse of rights applies. This is based on the classification for the application of the principle of good faith in respect of taxpayers. An example of the former may be cases where, even though the requirements of the principle of protection of legitimate expectations are not fully met, a tax assessment is still disallowed based on the principle of good faith as there is a compelling need to protect the taxpayer’s reliance in light of the tax authorities’ contradictory conduct. Examples of the latter may include (ⅰ) cases where it is considered a violation of the principle of good faith for the tax authorities to assert a position detrimental to the taxpayer, even though the taxpayer was unable to request a Review for Adequacy of Tax Imposition or similar appeals due to the fault of the tax authorities, and (ⅱ) cases where it is likewise considered a violation of the principle of good faith for the tax authorities to attempt to apply an amended tax law that is unfavorable to the taxpayer, despite having unjustifiably delayed the issuance of a tax assessment until after such amendment. Although there could be many more scenarios, this paper focuses on actual appeal cases that offer useful starting points for further reflection and analysis.