【Holding】
[1] Whether a taxation disposition made after written notification of the results of a tax investigation but before a request for a pre-assessment review or a decision thereon is void (affirmative, in principle) / Where the original disposition has a procedural defect of not properly affording the opportunity for a pre-assessment review, whether it is permissible to revoke the disposition and then, after curing the procedural defect, make a new disposition with the same content as the previous one (affirmative, in principle)
[2] Where the tax authority notified the results of a tax investigation after the deadline for notification of the results of a tax investigation prescribed in Article 81-12(1) of the Framework Act on National Taxes, even though the case does not fall under any exception to notification specified in the Framework Act on National Taxes and its Enforcement Decree, whether a taxation disposition made on the basis of such tax investigation is unlawful (affirmative, in principle)
[3] Time limit up to which the determination, etc. of the tax base and tax amount must be withheld where a pre-assessment review has been requested (= the time at which the "decision" itself on the pre-assessment review is made)
【Summary of Decision】
[1] Considering the background and purport of the introduction of the pre-assessment review system as a prior relief procedure, a taxation disposition made after written notification of the results of a tax investigation but before a request for a pre-assessment review or a decision thereon infringes the taxpayer's procedural rights and is void because its procedural defect is grave and obvious, barring special circumstances.
However, although the pre-assessment review system itself is an important prior relief procedure established to enhance the effectiveness of the relief of rights by reflecting the taxpayer's assertions at the stage before a taxation disposition, the tax authority may determine or correct the tax base and tax amount within the exclusion period for imposition, and may correct them again where an error or omission is discovered in the previous determination, etc.; therefore, even where the original disposition has a procedural defect of not properly affording the opportunity for a pre-assessment review, as long as the exercise of the taxing power has not become impossible due to the expiration of the exclusion period for imposition, it should be deemed permissible, in principle, to revoke the original disposition and then, after curing the procedural defect, make a new disposition with the same content as the previous one. If it were deemed uniformly impossible for the tax authority in such a case to make a new disposition after curing the procedural defect, unjust results contrary to the principle of equitable taxation and tax justice, such as inequity with other taxpayers, could arise beyond the original purport of guaranteeing the taxpayer's procedural rights.
[2] The reason for expressly prescribing and regulating the deadline for notification of the results of a tax investigation and the exceptions to notification in order to protect the rights and interests of taxpayers in tax investigation procedures is, in consideration of the fact that tax investigations have an enormous impact on taxpayers' freedom of business and legal stability, and that, if the deadline for notification of the results of a tax investigation is not observed, a side effect may arise whereby the tax authority indirectly extends the period of the tax investigation, to impose on the tax authority an obligation to reach a conclusion promptly once a tax investigation is concluded while providing procedural guarantees so that the taxpayer can properly exercise the right of defense. Considering the purport of such system of notification of the results of a tax investigation, etc., where the tax authority notified the results of a tax investigation after the deadline for notification of the results of a tax investigation prescribed in Article 81-12(1) of the Framework Act on National Taxes, even though the case does not fall under any exception to notification specified in the proviso to the part other than the subparagraphs of Article 81-12(1) of the Framework Act on National Taxes and the subparagraphs of Article 63-13(2) of the Enforcement Decree of the Framework Act on National Taxes, it is reasonable to view that this infringes the taxpayer's procedural rights and that a taxation disposition made on the basis of such tax investigation is unlawful, barring special circumstances justifying it.
[3] Considering that the wording of Article 81-15(4) of the Framework Act on National Taxes itself strictly distinguishes between the terms "decision" on a pre-assessment review and "notification" of such decision, and that Article 63-15(4) of the Enforcement Decree of the Framework Act on National Taxes, in line with the wording of the above provision of the Framework Act on National Taxes, also expressly provides that the determination or correction of the tax base and tax amount be withheld merely until a "decision" on the pre-assessment review is made, etc., the time limit up to which the determination, etc. of the tax base and tax amount must be withheld where a pre-assessment review has been requested is only until the time at which the "decision" itself on the pre-assessment review is made, and cannot be regarded as being until the time at which the "decision" is actually notified or served on the requester.
【Referenced Statutes】
[1] Article 81-15 of the Framework Act on National Taxes; Article 63-15(4) of the Enforcement Decree of the Framework Act on National Taxes [2] Article 81-12(1) of the Framework Act on National Taxes; Article 63-13(1) and (2) of the Enforcement Decree of the Framework Act on National Taxes [3] Article 81-15(4) of the Framework Act on National Taxes; Article 63-15(4) of the Enforcement Decree of the Framework Act on National Taxes
【Referenced Precedents】
[1] Supreme Court Decision 2016Du49228, December 27, 2016 (Gong2017Sang, 257)
Supreme Court Decision 2017Du51174, October 29, 2020 (Gong2020Ha, 2320)
(Source: Supreme Court Decision 2026Du30542, August 13, 2026 | Judicial Information Disclosure Portal, Supreme Court of Korea)
2026. 10. 26. · By Attorney Dongwoo Shin
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