부정행위로 상여처분된 금액에 대한 소득세 부과제척기간

If a taxpayer evades any national tax, or receives a refund or deduction, by fraudulent or other unlawful means, hereinafter referred to as “unlawful means”, the statute of limitations period for assessment of national taxes is ten years from the date on which national tax is assessable. However, according to the amended Article 26-2(1) of the Framework Act on National Taxes, the statute of limitations period for assessment of national taxes has been extended to ten years from the date on which income tax is assessable on the amount of disposition under Article 67 of the Corporate Income Tax Act if the national tax item that has been evaded by unlawful means or refunded or deducted involves corporate income tax. According to Addenda Article 2(1), the amended provisions of the latter part of Article 26-2(1) applies beginning with the amount to be first disposed of under Article 67 of the Corporate Income Tax Act after January 1, 2012. According to the above provisions of the law, the statute of limitations period with respect to income taxes involving evasion of corporate income taxes through unlawful acts such as embezzlement by an officer of a corporation is ten years from the date on which income tax is assessable both when it is clear to whom the earnings involving funds that flow outside the company will revert but also when it is no clear to whom the earnings will revert. Also, the ten-year statute of limitations period applies regardless of the date of the unlawful act as long as the disposition of income first occurs after January 1, 2012. However, it is unfair to apply the ten-year statute of limitations period for income taxes on earnings from disposition of income as if the company representative has committed an unlawful act where it is not clear to whom the outflow of funds from the company will revert. As such, it is appropriate to apply the statute of limitations provision of the Framework Act on National Taxes only where it is clear to whom the earnings subject to disposition of income will revert if the corporate officer has evaded corporate income taxes by unlawful means. In addition, the above revised Article of the Framework on National Taxes applies retroactively in that the provision applies to taxpayers for whom the tax liability has been established even before the law has entered into force. Given that there are no special circumstances for which a retroactive legislation will be accepted, there is a high likelihood that such addenda to the amended Article of the Framework on National Taxes will be deemed as unconstitutional. As such, it is recommended that Addenda Article 2(1) be amended to apply beginning with the disposition of income through unlawful means that is completed after January 1, 2012.