Loss carry-back refund recovery as a later year's corporate tax assessment

1. 01Question

   Where the corporate tax amount on which a small enterprise's loss carry-back refund was based later changed, is a reassessment and notice of the over-refunded amount with interest-equivalent added, as corporate tax of the business year in which the loss arose, an assessment and collection measure governed by the assessment limitation period?

2. 02Holding

   It was. The Supreme Court held that such a duty to pay corporate tax is fixed as a concrete tax debt only once the tax office director has judged the conditions, re-decided the refund amount and calculated the over-refunded amount with the interest-equivalent. The measure was therefore an assessment and collection measure for the corporate tax of the loss year rather than a recovery under Article 51(8) of the former Basic Act on National Taxes, the five-year assessment limitation period applied to it, and that period had expired.

   Points at issue, verbatim

   구 법인세법 제72조 제5항, 구 법인세법 시행령 제110조 제5항, 제6항에 따라 환급세액과 그 이자 상당액을 2006 사업연도 법인세로 경정·고지한 사안에서, 위 처분은 2006 사업연도 법인세의 부과 및 징수처분에 해당하고 그에 관한 부과제척기간이 경과하여 위법하다고 한 사례

   Unofficial English translation

   In a case where, pursuant to Article 72 (5) of the former Corporate Tax Act and Article 110 (5) and (6) of the former Enforcement Decree of the Corporate Tax Act, the refund amount and an amount equivalent to the interest thereon were corrected and assessed by notice as the corporate tax for business year 2006, it was held that the above disposition constitutes an assessment and collection disposition for the corporate tax for business year 2006 and is unlawful in that the exclusion period for assessment relating thereto had elapsed.

3. 03Disposition

   Dismissed Stated in the decision

   상고를 기각한다. 원고보조참가인들의 보조참가신청을 각하한다.

   Unofficial English translation

   The appeal is dismissed. The plaintiff auxiliary intervenors' application for auxiliary intervention is dismissed on procedural grounds.

4. 04Form of the test

   Elements stated Read from the decision

   그러한 절차를 통해 그 납세의무와 관련된 과세표준과 세액이 구체적으로 확정되어야 구체적 조세채무·채권관계가 발생한다.

   Unofficial English translation

   The tax base and tax amount relating to that tax liability must be specifically determined through such procedures before a specific tax debt-creditor relationship arises.

5. 05Factors

   • 구 법인세법 제25조 제1항 제1호에서 정한 중소기업인 갑 주식회사는 2006 사업연도에 결손금이 발생하자 구 법인세법 제72조 제1항에 따라 결손금의 소급공제에 의한 환급을 신청하여
   • 2005 사업연도 법인세의 과세표준과 세액에 영향을 미치는 법원의 화해권고결정이 확정되었다는 이유로
   • 결손금 소급공제 환급세액 계산의 기초가 된 2005 사업연도 법인세액이 달라져 과다하게 환급된 결과가 되었다는 이유로
   • 구 법인세법 제72조 제5항, 구 법인세법 시행령 제110조 제5항, 제6항에 따라 환급세액과 그 이자 상당액을 2006 사업연도 법인세로 경정·고지한 사안에서
   • 위 처분은 2006 사업연도 법인세의 부과 및 징수처분에 해당하고 그에 관한 부과제척기간이 경과하여 위법하다고 한 사례

   Unofficial English translation

   • A Inc., a small and medium enterprise as defined in Article 25 (1) subparagraph 1 of the former Corporate Tax Act, incurred a loss in business year 2006 and, pursuant to Article 72 (1) of the former Corporate Tax Act, applied for a refund based on the carryback of the loss and

   • on the ground that a decision recommending settlement of the court affecting the tax base and tax amount of the corporate tax for business year 2005 had become final and conclusive,

   • on the ground that the corporate tax amount for business year 2005, which had served as the basis for calculating the refund amount of the carryback of the loss, had changed so that an excessive refund had been made,

   • in a case where, pursuant to Article 72 (5) of the former Corporate Tax Act and Article 110 (5) and (6) of the former Enforcement Decree of the Corporate Tax Act, the refund amount and an amount equivalent to the interest thereon were corrected and assessed by notice as the corporate tax for business year 2006,

   • it was held that the above disposition constitutes an assessment and collection disposition for the corporate tax for business year 2006 and is unlawful in that the exclusion period for assessment relating thereto had elapsed.

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 1996. 9. 24. 선고 95누15445 판결, 대법원 2013. 5. 24. 선고 2013두659 판결 등 참조

   Unofficial English translation

   See Supreme Court Decision 95Nu15445 decided September 24, 1996; Supreme Court Decision 2013Du659 decided May 24, 2013; etc.

   Decisions referred to

   해당 본문 참조

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If a subsequent correction request and the later recovery of the over-refund concern the same subject and the same tax period, can the special limitation period under Article 26-2(2)(iii) of the former Basic Act on National Taxes apply to that recovery?

   A later decision treating the recovery of an over-refunded loss carry-back amount as a measure under Article 51(8) of the Basic Act on National Taxes, or one applying the special limitation period to a recovery of the same subject and period, would require this entry to be read again. An amendment to Article 72 of the Corporate Tax Act or to Article 110 of its Enforcement Decree on the recovery of over-refunded amounts has the same effect.

Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

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