과세처분 취소소송에서 처분사유 추가·변경의 기준

Abstract

The Supreme Court has used the phrase ‘identity of basic facts’ as the criterion for determining the addition or change of reasons for disposition in general administrative litigation. In lawsuits for revocation of taxation disposition, the expression ‘identity of disposition’ has been mainly used. However, in the case of taxation disposition, the expression ‘identity of disposition’ is only used in a relatively broad sense to reflect the characteristics of taxation disposition and to recognize the scope of addition or change of reasons for disposition. Therefore, the ‘identity of basic facts’ is also a criterion for adding or changing reasons for disposition in a lawsuit for revocation of taxation disposition. The Supreme Court has held that ‘identity of basic facts’ is determined by whether the social facts, as a pre-legal concept, are basically the same. However, these criteria alone do not provide a convincing explanation for the permissibility of adding or changing reasons for disposition. As in the case of an amendment to the bill of indictment, it is necessary to recognize the normative elements in the content of the ‘identity of basic facts’. If this is recognized, the tax unit can function as a normative element in the case of taxation disposition. The Supreme Court held that in the case of withholding tax, the recipient of the amount of income is not an essential factor that distinguishes the unit of tax obligation, so it is possible to change it during the hearing of a lawsuit for revocation of collection disposition. However, changing the tax item as a result was not allowed. If normative factors are recognized, in special cases of withholding tax, even if the tax item changes, it is possible to add or change the reasons for disposition considering the legal structure and defense rights.