‘조세포탈의 목적’에 관한 대법원 판례의 의의(意義)- 사기 기타 부정한 행위의 적극적 은닉의도를 중심으로(1) -

Anyone who evades taxes by fraud and improper acts is guilty of tax evasion. On the first appearance, the Supreme Court's cases are inconsistent whether the “purpose to evade tax” is a necessary element to constitute the crime of tax evasion; while the Supreme Court does not explicitly require the purpose to avoid or evade tax in determining vorsatz of tax evasion, on the other hand, the Court requires “the purpose to evade tax” when determining fraud and other unlawful acts in tax evasion. Clause 6 of Article 3 of the Punishment of Tax Offense Act, which defines fraud and unlawful acts, does not list the “purpose to evade tax” as an element to constitute fraud and unlawful acts. Thus, this paper re-examined the fraud and unlawful acts as “affirmative acts which make the imposition and collection of taxes impossible or remarkably difficult to conceal income” in relation to “purpose to evade tax” to clarify the Supreme Court’s meaning for requiring the “purpose to evade tax” as a subjective mind when one commits fraud and unlawful acts. Hence, this paper examined the changes and position of the Supreme Court regarding the “purpose to evade tax” and affirmative acts. Next, this paper reviewed the laws and its interpretation of the subjective elements including affirmative acts of tax evasion in the United States and Japan which provides guidance to interpret the Supreme Court’s decisions. Finally, with this guidance, this paper scrutinized the Supreme Court’s meaning for requiring the “purpose to evade tax” by re-examining the elements of fraud and unlawful acts as the following: 1) affirmative acts 2) which make the imposition and collection of taxes impossible or remarkably difficult 3) to conceal income in tax evasion. The affirmative act in fraud and unlawful acts is the act with the “purpose to evade tax.” Thus, it can be interpreted that the Supreme Court used the term of affirmative intent to conceal to draw a clear distinction between the “purpose to evade tax” in the context of fraud and unlawful acts; and the “purpose to evade tax” which results in tax evasion. Consequently, to constitute fraud and other unlawful acts that are punishable for tax evasion, the concealment of income which makes the imposition and collection of taxes impossible or remarkably difficult alone is insufficient, rather the acts that were committed with the “purpose to evade tax” is required. Therefore, the paper concludes the Supreme Court’s meaning for requiring the “purpose to evade tax” in fraud and unlawful acts is, although tax evasion was a foreseeable outcome of concealment of income, if one conceals his or her income with a purpose other than the “purpose to evade tax,” then one’s act shall not be considered as fraud or unlawful acts.