조세 판례 변경과 형사처벌의 문제―법률의 착오와 비과세 관행을 중심으로

The tax liability is established when the legal requirements stipulated by the tax law is satisfied. However, there are cases in which courts change the interpretation of existing tax laws as society progresses and time passes. Then, at the time when the taxpayer committed a fraudulent act, the court was denying the establishment of the tax liability under certain facts. However, the court changed its position to the tax liability established on the same matter after the taxpayer committed cheating. The question is whether the taxpayer can be punished for tax evasion on that matter. The Supreme Court considered that even if the existing precedent was changed, the principle of the prohibition of retroactive effect did not apply. Therefore, even if the tax precedent is changed, the taxpayer can be punished under the changed precedent. However, first of all, in terms of objective constituent requirements, if a kind of non-taxation practice has been established according to existing tax precedents, it cannot be considered that tax liability is incurred due to a change in precedent. Next, with respect to subjective constituent requirements, (ⅰ) if the non-taxation practice is established for a large number of unspecified taxpayers, the tax liability is not established even in the light of objective norms, so the intention is carved out, and (ⅱ) the principle of good faith is applied, or (ⅲ) If a legitimate reason for exemption from penalty tax is admitted, it can be seen that the legitimate reason related to an error in the law is recognized and the responsibility is fragmented. Considering these points, even if the tax precedent has been changed after the fact that the tax liability is established, it cannot be concluded that tax evasion is immediately established for that reason alone. The court should additionally examine before making conclusion whether non-taxation practices have been established in relation to the existing tax precedents, and whether there is any reason for fragmenting responsibility, such as the principle of good faith or the legitimate reason for exemption of additional tax, etc.