납세환경의 변화와 조세범처벌법상 사기 그 밖의 부정한 행위의 판단기준

Under the 2010 amendment of the Tax Evasion Punishment Act (“TVSA”), the meaning of “Fraud and Other Unlawful Activities” is clearly stated as “(any) active acts which make the imposition and collection of taxes impossible or remarkably difficult”. Considering the amended wordings of the TVSA, specifically requiring the difficulty level of tax imposition and collection to be more than “mere difficult” but rather “impossible” or “remarkably difficult”, the interpretation of constituents of tax evasion crime should be strictly scrutinized. Therefore imposing penalty tax, instead of criminal sanction, should be enough in cases where the level of effect of a taxpayer’s act on the imposition and collection of taxes could not be evaluated to be higher than the threshold of the foregoing requirements. Imposition of taxes is different from taxpayer’s tax filing, since the imposition is executed in the course of tax investigation conducted by tax authority according to the relevant tax laws. Therefore, above all, in order to make a judgment if any acts constitute “Fraud and Other Unlawful Activities”, how and in what extent could the tax authority have had the opportunity to review the tax payer’s tax filing should be evaluated. In other words, merely identifying the fact that a certain taxpayer has committed an unjust act should not easily constitute “Fraud and Other Unlawful Activities” but rather need to be further looked into whether the tax authority was not able to uncover the underreporting of taxpayer due to the unjust act. Recently, the tax authority has gained and strengthened its access to various information databases, apart from tax filing and tax investigation, in order to verify the accuracy of taxpayer’s filing figures. The enactment of Mandatory Filing of Foreign Accounts in 2010, the introduction of Electronic VAT invoice in 2011, the amendment of Act on Reporting and Using Specified Financial Transaction Information in 2013 are examples of those which enhanced the National Tax Service’s information access. Considering that the tax authority has the power and resources to verify taxpayer’s filing figures during the course of ordinary tax investigation, and that this should be the starting point of evaluating whether certain act of the taxpayer should constitute Fraud and Other Unlawful Activities, looking into how much the tax authority has had the chance to verify the tax filing is an important factor. Reflecting the above, in a new era of widespread electronic accounting books, mere act of preparing false electronic accounting books should not be interpreted as Fraud and Other Unlawful Activities since the electronic book itself should not have a separate evidential meaning apart from tax filing, and only to the extent where the substantive evidentiary document, which is the subject of verification in the course of tax investigation, manipulated should thereby constitute “active acts which make the imposition and collection of taxes impossible or remarkably difficult”.