역외탈세의 논의국면에서 본 탈세의 개념체계

Offshore tax evasion is that a locational factor of offshore is integrated into the basic concept of tax evasion. If all or a part of the facts that satisfy the taxation requirements are located outside the territory of a certain country, it will be deemed to meet the factor of offshore. The issue is how to define the concept of tax evasion. Although tax evasion is a legal term, it is true that there have not been sufficient discussions on the concept so far. That is, previous discussions on tax evasion only focused on tax avoidance or mostly compared tax evasion with tax avoidance. Even the term of tax evasion was used as tax fraud and this brought utter confusion. A taxpayer's activity to reduce the tax burden is classified as the followingfour categories: tax saving, tax avoidance, tax evasion, and tax fraud. Tax saving falls within alegitimate activity under tax law. Tax avoidance also comes under alegitimate activity, but its outcome to reduce tax burden is inconsistent with the legislative intention of a provision in the tax law. Tax evasion refers to an unlawful act to violate tax liability in a tax law provision. Tax fraud refers to frauds or other illicit acts beyond the tax evasion. In this sense, tax evasion and tax fraud are clearly distinguished. Even if accepting the examples that tax fraud equates with tax evasion, the concept of tax evasion can be divided into the two, the broad and narrow meaning of tax evasion, and tax fraud will fall within the narrow meaning of tax evasion. Meanwhile, it is necessary to take a structural approach to the four concepts that composea taxpayer's activity to reduce the tax burden, rather than usingthe dimensional point of view on the four concepts. This is because unlike the other three concepts, tax avoidance has a changeable nature as an in-between concept which depends on whether the substance over form rule is applied or not. In other words, from the perspective of effects, tax avoidance without applying the substance over form rule is a lawful act and thus it will be treated as tax saving. On the other hand,tax avoidance which is restructured according to the substance over form rule is an illegal act and thus, it will be the same as tax evasion. The tax avoidance in the latter case may be categorized as the broadest concept that includes the concept of tax evasion. In such case, whether it can also constitute tax fraud would be an issue because the tax avoidance restructured according to the substance over form rule includes tax evasion. However, it is reasonable that tax avoidance does not constitute tax fraud unless there is an exception, since tax avoidance does not have the behavioral aspects of concealing income,such as fraudulent bookkeeping, fabrication, or covering-up. This means that tax avoidance in which it is a formally legitimate and effective transaction may be excluded from the activity of hiding income. For these reasons, the taxpayer's activity to reduce the tax burden can be classified as the following three: tax saving, tax evasion, and tax fraud. And then, if the term of tax evasion appears in a certain law provision, how should it be interpreted? If the concept of tax evasion is specified or presumed to apply to criminal punishment, it should be interpreted as tax fraud(narrow meaning). If it does not, it will bereasonable to interpret that the term tax evasion in such law provision includes the three concepts of tax evasion described as above. Tax fraud(narrow meaning) is certainly included in the concept of the above tax evasion. Although tax evasion(broad meaning) may not constitute tax fraud, tax fraud always constitutes tax evasion(broad meaning). However, if a tax authority imposes taxes on a certain tax avoidance transaction in which the tax authority restructured it applying the substance over form rule, and the relevant taxpayer is in the process of contending against it, such tax avoidance will not constitute the above tax evasion. This is because only courts have a final authority to determine whether the tax authority's imposition of tax is legitimate. Only when a court rules that such imposition of taxes is lawful, the tax avoidance restructured according to the substance over form rule comes to constitute tax evasion(the broadest meaning), while it is unlikely that tax avoidance falls within tax fraud.