조세포탈과 조세회피의 개념 구분

초록

Under the Korean tax laws, as is usual in most of the developed countries, ‘tax evasion’ and ‘tax avoidance’ have different meanings. They are regulated by independent provisions. Both of them are categorized as anti－social activities and therefore have lots of similarities for the application of tax laws. However, the damages inflicted by each activities are not identical from the perspective of social integration, which duly requires the differentiation of each term for the purpose of tax law application. ‘Unjust activity’, which is the core component of ‘tax evasion’ under the Korean tax laws, means an affirmative activity to conceal the existence of facts satisfying the occurrence of tax liability from the eye of tax officials. ‘Unfair activity’, which is the core component of ‘tax avoidance’ under the Korean tax laws, means an activity to save tax money through irregular transactions, etc. It is also understood as the abuse of tax laws through utilizing legal forms or transactions either devoid of or mis－representing ‘economic rationality’. The differences between the two concepts having been found, the following amendments in the Korean tax laws are recommendable. First, a provision which includes the sham transaction accompanied with concealed transaction in the scope of ‘tax evasion’ is to be provided. It will sanction the ‘concealment’ of transactions which may fall under the taxation with the step transaction doctrine. Second, in case the concealment of a property does not have any direct relation with any tax evaded, the concealment itself should not trigger the tax evasion punishment. Third, simple non－filing should be criminally sanctioned as misdemeanor, or the penalty tax against it should be strengthened. Fourth, the tax laws have to provide for the defence of ‘economic rationality’ in a concrete manner. Fifth, the regulation system against tax avoidance, such as Aggressive Tax Planning system in the U.S. and Australia, etc., should be introduced.

키워드