횡령죄와 배임죄의 세법상 취급에 대한 소고

Abstract

It is a common view and also the view of the court that illegal income is taxable. However, this issue discusses whether taxation on illegal income is fundamentally impossible, and the issue whether income not stated in Income Tax Act is taxable based on the principle of no taxation without law is a different issue to be discussed. Currently, taxation of the illegal income through embezzlement has been actively studied, and there are some precedents among the courts’ rulings that taxes such income with income disposal process and other precedents that directly taxes the income. This study focuses on embezzlement as well as misappropriation ,with similar characteristics, to discuss the issues of taxation on income through embezzlement and misappropriation with income disposal, the methods of calculating the tax base for incomes by misappropriation, and possible solution through legislation. In conclusion, from the perspective of the victim company, the income disposal should be through the exclusion from the deductible expenses, and for misappropriation cases, the income should be recognized when the damages claims are finalized. In addition, because there is no explicit provision, there is no clear decision criteria for the judicial branch causing various additional problems；therefore, the income through embezzlement or misappropriation should be subject to taxation with legislation of explicit provisions in Income Tax Act as “other income” for clear enforcement and interpretation of law.