실질과세 측면에서의 위법소득 과세문제에 대한 이론적 검토―일본에서의 논의를 중심으로―

Abstract

Article 59 of the Constitution stipulates it as “Types and rates of taxes shall be determined by Act.” This means principle of no taxation without law. It is one of the fundamental principles of the tax law. The primary purpose of guaranteeing property rights of the people and stabilization of legal life. As another principle, the principle of substantial taxation refers to taxation based on real substance rather than form. Tax evasion cases, which are subject to taxation problems in Korea, are similarly problematic in Japan. Illegal income means that the process of obtaining income is illegal. It may be classified as criminal illegal income and civil illegal income that is Invalid activity, cancellation act, and the like. Although there is no clear provision in the tax law, many theories and Supreme Court precedents are positive for taxation. Due to indefiniteness of regulation about it, the principle of substantial taxation can be a key factor. Some argue that taxation on illegal income is not related to the principle of substantial taxation. It is only a matter of the scope of taxable income under the Act. However, it can not be denied that it provides a theoretical basis for illegal income. Article 59 of the Japan Income Tax Act stipulates it as “Where a person who is deemed to be a beneficiary of a revenue arising from an asset or a profit-making business does not enjoy the profits and enjoys enjoying the profits, the profits shall apply to the person who enjoys the benefits of this Act.” Article 11 of the corporate tax laws is not different. Basically, two theories conflict with regard to the meaning of ‘substance’. There is no difference between Korea and Japan regarding positive for taxation in illegal income. We hope to find a solution to the dispute in our country through discussions on Japanese illegal income. This problem concerning the taxation of illegal income obviously reflects the economic substance. So this is not just about the interpretation of income concepts. In the case of Korea, the Supreme Court has recently ruled on illegal income, as a result, the academia has been once again focused on illegal income. Problems relating to the loss of illegal income are consequently linked to the attribution of income. The changes in the Supreme Court's rulings would be based on economic substance and avoiding normative attitudes. It seems to have taken a neutral position. The ruling is reasonable in terms of the protection of taxpayers’ interests, and is considered to account for taxes.