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(영문) 대법원 2017. 12. 13. 선고 2016두55421 판결
[양도소득세부과처분취소]〈중복세무조사에 기한 양도소득세 부과사건〉[공2018상,228]
Main Issues

Whether a taxation disposition based on a reinvestigation prohibited under Article 81-4(2) of the former Framework Act on National Taxes is in itself unlawful (affirmative in principle), and whether the same applies to cases where a tax authority did not consider the taxation data acquired by such reinvestigation as the basis for taxation or excluded it from taxation (affirmative)

Summary of Judgment

The tax investigation should be conducted within the minimum necessary scope for appropriate and fair taxation, and further re-audit of the same item and the same taxable period may seriously infringe the taxpayer's freedom of business and legal stability as well as may lead to the abuse of the right to tax investigation. Therefore, it is necessary to prohibit except in exceptional cases where it is clearly contrary to the principle of fair taxation.

In the same purport, the Framework Act on National Taxes strictly limits the cases where re-audit is exceptionally permitted. Thus, re-audit of the same item and the same taxable period should be prohibited in principle, and in the event that the principle of prohibition of duplicate tax audits is violated, there is a serious procedural defect that cannot be controlled by the method of denying the validity of the taxation disposition.

In full view of the language and structure of the provisions of Article 81-4(1) and (2) of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014); legislative intent that strictly limits reinvestigations; the effect of the violation thereof; etc., barring any special circumstance, such as that the imposition of a tax by a reinvestigation prohibited under Article 81-4(2) of the former Framework Act on National Taxes is merely a case where the error of initial taxation is corrected. Unless there are special circumstances such as that the tax authority’s imposition of a tax is merely a case where the error of initial taxation is corrected, it is unlawful in itself. This does not change because the tax authority did not regard the taxation data

[Reference Provisions]

Article 81-4(1) and (2) of the former Framework Act on National Taxes (Amended by Act No. 12848, Dec. 23, 2014)

Plaintiff-Appellant

Plaintiff (Jap Tae et al., Counsel for the plaintiff-appellant)

Defendant-Appellee

Head of Eastern Tax Office

Judgment of the lower court

Seoul High Court Decision 2016Nu49589 decided October 11, 2016

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 81-4 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same) provides that “tax officials shall conduct a tax investigation to the minimum extent necessary to realize proper and fair taxation, and shall not abuse their authority to conduct an investigation for other purposes, etc.” In addition, Article 81-4 of the same Act provides that “tax officials shall not conduct a re-investigation on the same item of tax and the same taxable period unless they fall under any of the following subparagraphs, unless the re-investigation is permitted” (Article 1); “Where it is necessary to conduct an investigation on the other party to a transaction” (Article 2); “where there is any error related to two or more taxable periods” (Article 3); “where an objection, a request for examination, or a request for adjudgment is deemed to have justifiable grounds and an investigation is conducted in accordance with the decision on necessary disposition” (Article 4). 5 and subparagraph 5 of the same Article are similar to cases prescribed by Presidential Decree.

The tax investigation should be conducted within the minimum necessary scope for appropriate and fair taxation, and further re-audit of the same item and the same taxable period may seriously infringe the taxpayer's freedom of business and legal stability as well as may lead to the abuse of the right to tax investigation. Therefore, it is necessary to prohibit except in exceptional cases where it is clearly contrary to the principle of fair taxation.

In the same purport, the Framework Act on National Taxes strictly limits the cases where re-audit is exceptionally permitted. Thus, re-audit of the same item and the same taxable period should be prohibited in principle, and in the event that the principle of prohibition of duplicate tax audits is violated, there is a serious procedural defect that cannot be controlled by the method of denying the validity of the taxation disposition.

In full view of the language and structure of the relevant provisions, the legislative purport that strictly limits reinvestigations, the effect of the violation thereof, etc., barring special circumstances, such as the fact that the imposition of a tax by a reinvestigations prohibited under Article 81-4(2) of the former Framework Act on National Taxes is merely a case where the errors of the initial taxation are corrected. This does not change on the sole basis of the fact that the tax authority did not regard the taxation data acquired by a reinvestigations as the basis of the taxation disposition or excluded it from it, but the same taxation disposition is possible.

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

A. On October 12, 2004, the Plaintiff acquired the instant real estate by auction, and transferred it to the Young Heavy Industries Co., Ltd. (hereinafter “instant acquisition company”) on February 26, 2012.

B. Upon reporting the transfer income tax on April 27, 2012, the Plaintiff reported the necessary expenses on the ground that between November 1, 2004 and June 1, 2005, the Plaintiff performed remodeling construction works for the building among the instant real estate (hereinafter “instant construction works”) and paid the construction cost of KRW 285,00,000 to the construction company. In addition, the Plaintiff reported the necessary expenses on the ground that the said expenses were paid KRW 26,50,000 for the electricity pressure construction cost.

C. From October 4, 2012 to October 23, 2012, the head of the Gangnam District Tax Office conducted a tax investigation with respect to the Plaintiff. Upon submitting a written contract and construction specifications of the instant construction project, financial transaction statement, and the Plaintiff’s confirmation of Nonparty 1’s representative of the instant acquiring company to the effect that the instant acquiring company was a remodeling project at the time of leasing the instant real estate on December 19, 2006, the tax investigation was completed as deemed necessary expenses only for the instant construction cost.

D. After that, the National Tax Service conducted an audit of the business affairs of the Gangwon Provincial Tax Office, and issued a corrective order to re-revision the transfer income tax on the Plaintiff on the ground that the contractor did not issue a tax invoice for the construction cost and the details of payment of the construction cost presented by the Plaintiff were not reliable due to the failure of the recipient of the construction cost.

E. Accordingly, in order to verify whether the instant real estate was constructed or not from July 23, 2014 to July 25, 2014, a public official in charge of the investigation of the Gangwon tax secretary visited the site of the instant real estate, submitted a written statement to the effect that the instant construction was forged by Nonparty 1 and Nonparty 2, the representative of the acquiring company and Nonparty 2, who was in charge of Nonparty 1, and that the instant construction was not actually carried out, and denied the instant construction cost by deeming that the instant construction was not actually carried out (hereinafter “instant re-investigation”). On October 1, 2014, the Defendant, having jurisdiction over the Plaintiff’s domicile, issued the instant disposition imposing capital gains tax of KRW 161,81,470 (including additional tax) for the Plaintiff for the year 2012.

3. Examining the above facts in light of the legal principles as seen earlier, the re-audit of this case cannot be deemed as exceptionally permitted under each subparagraph of Article 81-4(2) of the former Framework Act on National Taxes, and thus, is prohibited pursuant to the same paragraph. Therefore, it is unlawful without examining whether the instant disposition based on the re-audit of this case was based on the taxation data acquired as a result of the re-audit of this case or whether it is possible to exclude it

4. Nevertheless, the lower court determined otherwise on the ground that the instant disposition was lawful on the grounds that the Defendant did not serve as the basis for determining the taxation data obtained through the reexamination of the instant case, and that the instant disposition was possible even if the taxation data were excluded. In so determining, the lower court erred by misapprehending the legal doctrine on the principle of prohibition of duplicate tax investigations, thereby adversely affecting the conclusion of the judgment.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)

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