위법소득에 관한 조세포탈의 처벌을 둘러싼 쟁점 고찰

Currently, the theory and the precedent are almost identical that it is possible to tax illegal income. Tax evasion is the crime which punishes evasion of a certain amount of tax liability recognized as payable to the state. In order for tax evasion to be established, the tax liability by tax law must be established. However, although tax liability is established on illegal income, only if tax liability on it is evaded by fraud or other fraudulent acts, it will be said that tax evasion is established. Two recent major issues surrounding penalties for tax evasion of illegal income are two. First, it is whether the establishment of evasion of individual income tax for the embezzlement by the CEO, who is the actual dominant manager of the corporation, is possible or not. The previous precedents and some theories are in the opinion that it is difficult to recognize the intention of the evasion of individual income tax because the CEO would not have recognized that the embezzlement would be CEO's individual income subject to income tax, and therefore, nor does manipulating the accounts for embezzlement constitute fraud or other fraudulent acts. However, the CEO, who enjoyed the benefits of embezzling the corporation's funds, dominated and managed the embezzlement without the expectation of return, and concealed them by manipulating the accounts, was able to recognize that the embezzlement amounted to taxable individual income. Although they don't even know it clearly, they could recognize that it is likely to be subject to taxable individual income. Nevertheless, if they don't have minimum investigation on the possibility of taxation, willful negligence will be recognized for them. Careful consideration should be given to whether or not to admit the ignorance of law in the area of ​​tax crime in a limited manner like United States. Even if it is acknowledged, if it is clearly stated in the law that the case is subject to taxation, there is no legal uncertainty for taxation on it, and taxpayer can quickly see if it is taxable by a simple investigation, we have to acknowledge the willful negligence for tax evasion on it. If we do not construct that way, there is risk that the punishment of the tax evasion will be virtually impossible. It is important to note that in the United States, which acknowledges the ignorance of law in tax crimes, willful negligence is highly likely to be recognized, if taxpayer avoids consciously investigating it, although they know the high probability of taxation on the case. And, willfulness for tax evasion will be satisfied in this case in Japan. Therefore, the above interpretation of the precedent must be reviewed. In addition, if the recognition that embezzlement is taxable individual income is recognized, it could be recognized that not only corporate income but also individual in come is concealed by the related accounting operation. Therefore, the accounting operation corresponds to fraud or other fraudulent acts on the evasion of individual income tax. Therefore, if a CEO, who is the actual dominant manager of the corporation, embezzles the funds of the corporation and conceals it through accounting manipulation, it will be said that it constitutes not only the evasion of corporate tax but also the evasion of individual income tax. Second, when the illegal income is returned or forfeited, and the tax liability become extinguished retroactively, it is questionable that the crime of tax evasion which was already established should be dealt with as if it were not established retroactively. Recently, the Supreme Court ruled that if the illegal income by bribery is confiscated, the original tax liability will be extinguished retroactively, therefore taxpayer can seek annulment of original taxation by lawsuit or claim of reassessment. There would be an opinion that admits retroactive effect or an opinion that denies retroactive effect. If there is legitimate tax liability at the time of taxpayer's criminal act, there is no defect in criminal punishment based on this. And the result that tax liability is extinguished retroactively by loss of illegal income is not necessarily inevitable by the logic of law. Therefore, the retroactive extinction of tax ability by it should not be regarded as affecting criminal punishment beyond the purpose of tax adjustment because it is only one of means for tax adjustment. Therefore, the opinion that denies retroactive effect is resonable, and even if the obligation to pay tax expires retroactively due to the loss of illegal income, it will not affect the punishment of tax evasion already committed. In addition, if we acknowledge the retroactive effect in the penalties of tax crime, the punishment of tax evasion could be decided according to taxpayer's choice, which does not conform to the system of our criminal justice system.