This article examines a selection of Supreme Court of Korea (“SCK”) tax decisions handed down in 2025 and published in the Publication of Cases (Panrye Gongbo) issued by the Supreme Court Library of Korea. The focus is on decisions that are not is...
This article examines a selection of Supreme Court of Korea (“SCK”) tax decisions handed down in 2025 and published in the Publication of Cases (Panrye Gongbo) issued by the Supreme Court Library of Korea. The focus is on decisions that are not isolated but can instead be situated within a broader line of case law and thus interpreted as part of a continuous doctrinal development. As a result of this selection method, albeit unintentionally, the cases discussed in this article primarily concern issues arising under the Framework Act on National Taxes (“FANT”) and procedural tax law.
(1) The first group of cases concerns the provisions of the FANT that exceptionally allow the tax authorities to issue an assessment without completing the so-called pre-assessment procedures (“PAPs”). In these decisions, the SCK interpreted the exception very narrowly, holding that the tax authorities may invoke it only where they are not at fault for having delayed the assessment until a point at which it has become practically impossible to complete the PAPs before the expiration of the statute of limitations. This article argues that these decisions fail to give adequate weight to the competing legal interests at stake and instead reach conclusions that overly prioritize the effectiveness of the procedural rules regarding PAPs.
(2) Another 2025 SCK decision examined in this article concerns the definition of a “tax audit,” in which the SCK simply reiterates its earlier case law focusing on whether the tax authorities’ conduct infringes the taxpayer’s freedom of business activities. This article argues that the legal test employed in that line of cases is too abstract and indeterminate to serve as a workable criterion for triggering the various FANT provisions designed to constrain the tax authorities’ powers and discretion in conducting tax audits (PAPs). It further suggests that, in such circumstances, it would be preferable for the tax authorities first to adopt administrative guidelines specifying the point at which their inquiries and examinations are to be regarded as a “tax audit,” with the courts subsequently reviewing the legality of those guidelines and of any actions taken pursuant to them.
(3) Finally, in a 2025 decision, the SCK held that a taxpayer who has been taxed on embezzled proceeds cannot obtain an ex post correction of the income tax assessment (via so-called “subsequent event–based ex post correction claim”) even where those proceeds are confiscated pursuant to a special statute by a criminal court judgment. This ruling follows a 2024 SCK decision holding that the tax liability on embezzled proceeds remains unaffected even if the taxpayer voluntarily returns the embezzled property to the victim. This article contends, however, that both the 2024 and 2025 decisions rest on a misunderstanding of the doctrinal framework articulated in a 2015 en banc decision of the SCK and therefore cannot be justified by reference to that precedent.
To conclude, this article argues that, in the procedural issues examined above, the SCK has either failed to develop and articulate a useful general doctrinal framework capable of structuring the legal tests applied in concrete disputes or has misunderstood the very general framework it previously adopted. Although the issues discussed here are undoubtedly difficult, it remains the responsibility of the SCK to distill coherent general principles from the relevant statutory provisions and to apply them consistently in subsequent cases.