사외유출소득의 과세 및 반환에 관한 연구

In many cases outflow of income from a corporation through embezzlement etc. is done by the representative director who is a controlling shareholder. The existing tax law treats such income as a bonus-labor income-. However it is inappropriate to treat such income as a labor income. The current law does so because of convenience in collecting tax, however it is difficult to regard its public necessity sets off the disadvantages of the corporation. And when the income is transferred through the capital transaction such as issuing of shares etc., the Gift and Estate Tax Law prescribes it as a taxable object for gift tax, and Regulation of the Corporation Income Tax Law excludes it from the object of income tax. However such income shall be subject to income tax, not to gift tax. It is reasonable to tax an income that has outflowed from a corporation to a controlling shareholder as a substantial dividend within the limit of earned surplus. And to tax the income outflowed from corporations as a dividend, it is not required that it is distributed according to the proportion of each shareholder's share, or to all shareholders. When the requirement of Fundamental Law of Tax Article 14 (3) is met, a transaction between a corporation and the third party could be recharacterized into a transaction between a corporation and its controlling shareholder and a transaction between the controlling shareholder and the third party. Meanwhile there are cases where a transfer of income from shareholders to a corporation can be regarded as a contribution to the capital of the corporation. If transfer of income between the corporation and its shareholders is treated as a dividend or contribution to the capital, its subsequent tax effect such as an adjustment of double taxation etc. shall be allowed. When an income having outflowed from a corporation is repatriated to the corporation, the amount of interest concerning the period from the point of outflowing to the point of return should be taxed. And granting no adjustment of income when such repatriation of income happens after the commencement of tax audit could be a excessive sanction and unconstitutional. So in such case it is necessary to allow rectification for ex post factors, or take measures such as treating it as contribution to the capital or allowing tax credit needs to be taken in order to prevent excessive sanction.