Open Decision Ledger · Tax & international taxation
Advance tax notice duty despite a short limitation period
Supreme Court, Feb. 13, 2025, 2023Du46777 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 각하재결취소청구
Official text on the National Law Information Center
Question
Where a tax assessment falls within the advance-notice duty of Article 81-15(1) of the former Framework Act on National Taxes but less than three months remain before the assessment limitation period expires, must the tax authority still give advance notice, and does a decision dismissing a Tax Tribunal application remain open to an action for annulment?
Holding
It was, and it is. An illegality inherent in the disposition itself makes a decision open to an action for annulment, and a decision that dismisses an administrative appeal although the appeal was not inadmissible strips the appellant of substantive examination, so it carries such an illegality; the same applies to an appeal against a decision of the Tax Tribunal. Where the case falls within Article 81-15(1) of the former Framework Act on National Taxes, the tax authority must still give advance notice even when less than three months remain, and an assessment made without it is unlawful unless there are special circumstances that show procedural propriety was not lost, which the tax authority must prove.
Points at issue, verbatim
절차적 정당성이 상실되지 않았다고 볼 만한 특별한 사정이 없는 한 과세예고통지 없이 이루어진 과세처분은 위법한지 여부(적극)
Unofficial English translation
Whether a tax disposition made without a notice of intended tax assessment is unlawful absent special circumstances that may be regarded as not having caused the loss of procedural legitimacy (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대전고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daejeon High Court.
Form of the test
Elements stated Stated in the decision
여기에서 말하는 ‘재결 자체에 고유한 위법’이란 그 재결 자체에 주체, 절차, 형식 또는 내용상의 위법이 있는 경우를 의미하는데
Unofficial English translation
The 'illegality inherent in the administrative adjudication itself' referred to herein means a case where the administrative adjudication itself is unlawful in terms of its subject, procedure, form, or content,
Factors
- 행정심판청구가 부적법하지 않음에도 각하한 재결은 취소소송의 대상이 되는지 여부
- 구 국세기본법 제81조의15 제1항이 정한 과세예고통지 대상에 해당하는 경우
- 국세부과 제척기간 만료일까지 기간이 3개월 이하인 때에도 과세예고통지를 하여야
- 절차적 정당성이 상실되지 않았다고 볼 만한 특별한 사정이 없는 한 과세예고통지 없이 이루어진 과세처분은 위법한지 여부
- 이때 특별한 사정의 존재에 관한 증명책임(=과세관청)
Unofficial English translation
• Whether an administrative adjudication that dismisses a request for administrative adjudication on procedural grounds even though the request was not improper may become the object of an action for revocation
• Where a case falls within the scope of the subjects of a notice of intended tax assessment as provided in paragraph (1) of former Article 81-15 of the Framework Act on National Taxes
• a notice of intended tax assessment must be given even when the period remaining until the expiration date of the exclusion period for imposing national taxes is three months or less
• Whether a tax disposition made without a notice of intended tax assessment is unlawful absent special circumstances that may be regarded as not having caused the loss of procedural legitimacy
• the burden of proof as to the existence of such special circumstances at that time (=the tax authority)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2001. 7. 27. 선고 99두2970 판결(공2001하, 1967)
Unofficial English translation
Supreme Court Decision 99Du2970 decided July 27, 2001 (Gong 2001 Ha, 1967)
Decisions referred to
[1] 대법원 2001. 7. 27. 선고 99두2970 판결(공2001하, 1967) / [2] 대법원 2014. 6. 26. 선고 2012두911 판결(공2014하, 1479)
Burden of proof
The party asserting Stated in the decision
이러한 특별한 사정의 존재는 과세관청이 증명하여야 한다.
Unofficial English translation
The tax authority must prove the existence of such special circumstances.
Open question and revisit condition
How serious and clear must a procedural defect from omitting the advance notice be before the tax assessment is void and no notice of tax takes effect?
The judgment the Daejeon High Court gives after this remand, on whether special circumstances were proved and on the degree of the procedural defect, would require this entry to be read again. Any amendment to Article 81-15 of the former Framework Act on National Taxes, including the items listed in its paragraphs 1 and 3, would also call for a fresh reading.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 7 (burden of proof).
Axis 7 (Burden of proof): Primary “The party asserting” vs Independent “The opposing party”
The primary labels the burden holder as the party asserting the point, which is the tax authority, while the independent labels it as the opposing party; the independent's own answer places the proof on the tax authority, so the label reflects a different side of the dispute.
특별한 사정의 존재에 관한 증명책임(=과세관청)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daejeon High Court, in its judgment of 13 June 2023 (2022Nu11093), held that even though the tax authority omitted the advance-notice procedure and made the value-added tax assessment with three months or less left before the assessment limitation period expired, the plaintiff's procedural rights could not be regarded as infringed to the point of rendering the assessment void.
Supreme Court standard: The Supreme Court held this could not be accepted. Item (iii) of Article 81-15(3) exempts a taxpayer only from the advance examination of legality, and the principle of strict construction of tax laws and the absence of any legal basis for omitting the notice do not allow that exemption to be stretched to the notice itself, so the court below was wrong in its premise and failed to examine whether special circumstances were proved and how serious the procedural defect was. It therefore reversed the whole judgment and remanded the case to the Daejeon High Court, on the unanimous opinion of the participating Justices, without deciding the remaining grounds of appeal.
Distinguishing conditions
- A tax assessment that falls under none of the advance-notice triggers of Article 81-15(1) of the former Framework Act on National Taxes.
- A case in which the tax authority proves special circumstances, such as no fault on its part, the limitation period becoming imminent, almost no time for the notice and almost no procedural benefit to the taxpayer.
- A case governed by Article 118(1) of the Customs Act, whose proviso expressly permits the notice to be omitted.
Record verification notes
Set the tax item and the date of the assessment against Article 81-15(1) and (3) of the former Framework Act on National Taxes, and confirm whether the omission falls under the advance examination or reaches the notice itself. Then record what the tax authority offers as special circumstances, when the notice became objectively possible, why the limitation period came close to expiring, and how far the plaintiff's procedural rights, including the advance examination of legality, were infringed. The Court also said that where the procedural defect is serious and clear enough to be void, no notice of tax may be treated as having taken effect, so the effect of the notice on the period for raising objections must be checked.
From the official text
Points at issue
[1] 행정소송법 제19조에서 말하는 ‘재결 자체에 고유한 위법’의 의미 및 행정심판청구가 부적법하지 않음에도 각하한 재결은 취소소송의 대상이 되는지 여부(적극) / 이러한 법리는 조세심판원 결정의 취소나 무효확인을 구하는 항고소송의 경우에도 적용되는지 여부(적극) [2] 구 국세기본법 제81조의15 제1항이 정한 과세예고통지 대상에 해당하는 경우, 과세관청은 국세부과 제척기간 만료일까지 기간이 3개월 이하인 때에도 과세예고통지를 하여야 하는지 여부(적극) / 절차적 정당성이 상실되지 않았다고 볼 만한 특별한 사정이 없는 한 과세예고통지 없이 이루어진 과세처분은 위법한지 여부(적극) 및 이때 특별한 사정의 존재에 관한 증명책임(=과세관청)
Unofficial English translation
[1] Meaning of 'an illegality inherent in the administrative adjudication itself' as used in Article 19 of the Administrative Litigation Act, and whether an administrative adjudication that dismisses a request for administrative adjudication on procedural grounds even though the request was not improper may become the object of an action for revocation (affirmative) / Whether such a legal principle also applies to appeal litigation seeking revocation or confirmation of nullity of a decision of the Tax Tribunal (affirmative) [2] Where a case falls within the scope of the subjects of a notice of intended tax assessment as provided in paragraph (1) of former Article 81-15 of the Framework Act on National Taxes, whether the tax authority must give a notice of intended tax assessment even when the period remaining until the expiration date of the exclusion period for imposing national taxes is three months or less (affirmative) / Whether a tax disposition made without a notice of intended tax assessment is unlawful absent special circumstances that may be regarded as not having caused the loss of procedural legitimacy (affirmative) and the burden of proof as to the existence of such special circumstances at that time (=the tax authority)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 대전고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daejeon High Court.
Provisions referred to
[1] 행정소송법 제19조 [2] 헌법 제12조 제1항, 구 국세기본법(2020. 12. 29. 법률 제17758호로 개정되기 전의 것) 제81조의15, 국세기본법 시행령 제63조의15 제4항, 관세법 제118조 제1항
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.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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