임직원의 배임적 부정행위와 법인에 대한 장기 부과제척기간, 부당과소신고가산세 적용

Abstract

The Supreme Court previously determined that unlawful act of the representative, employee, or any other worker of a taxpayer, who receives any benefit through the expansion of the scope of such acts as a person who is delegated for related affairs by the taxpayer, as well as a taxpayer’s unlawful act are subject to the application of the long-term imposition exclusion period on the grounds of unlawful acts of a representative or performance assistant unless there are extenuating circumstances, etc. where the taxpayer has not been negligent in giving due care and performing his/her duty of management and supervision in order to prevent unlawful acts of his/her employee, etc. However, in the case where his/her employee, etc. performed unlawful act by breach of trust, such as concealing the taxpayer’s property, in the process of committing crimes such as fraud, breach of trust, etc., whose victim is the taxpayer, even if the taxpayer has been negligent in giving due care and performing his/her duty of management and supervision in relation to unlawful act of his/her employee, etc., whether additional taxes on unfair underreported return and long-term imposition exclusion period may be applied to the taxpayer on the grounds of their unlawful act became an issue. Additional taxes on unfair underreported return is to impose severe sanctions on a taxpayer on the grounds of unlawful act, and thus a new legal principle that severe sanctions such as additional taxes on unfair underreported return of 40% exceeding general additional tax of understatement cannot be imposed on the taxpayer on the grounds of unlawful act by breach of trust by his/her employee, etc. in view of the principle of personal responsibility and excessive prohibition principle under the Constitution of the Republic of Korea when there are special circumstances, such as the case where a transaction partner joins in unlawful act by breach of trust performed by his/her employee, etc., which cannot be easily recognized or expected by the taxpayer was proclaimed . On the other hand, in regard to long-term imposition exclusion period, it is revealed that the taxpayer rather obtains an advantage such as avoiding the imposition and collection of national taxes, while it became difficult for tax authorities to exercise the right to impose national taxes due to unlawful acts by breach of trust of his/her employee, etc., but if there has been any negligence on the part of the taxpayer with respect to the appointment, management, and supervision of his/her employee, etc., it cannot be deemed that the taxpayer is not responsible for the interference with the exercise of the right to impose national taxes, and thus applying long-term imposition exclusion period to the taxpayer on the grounds of unlawful act by breach of trust of his/her employee, etc. is reasonable. As such, in relation to unlawful act by breach of trust performed by third parties including his/her employee, etc. which the taxpayer cannot easily recognize or expect although there has been any negligence on the part of the taxpayer in regard to the appointment, management, and supervision, the interpretation that the heavy imposition of additional taxes on unfair underreported return is denied, while long-term imposition exclusion period is applied ought to be seen as a result of constitutional interpretation of the law which considered the purpose of each system and concrete validity, not contravening the text and language of the provision of the former framework Act on National Taxes.