소득세제상 횡령 취급에 대한 비교법적 연구
A Comparative Legal Study on Tax Treatments over Embezzlement under Income Taxation
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This paper decomposes the tax consequences of embezzlement of four countries into five components: (ⅰ) whether the victims may deduct the embezzled loss, (ⅱ) whether the embezzlers are taxed (ⅲ) When a legal person’s fund is embezzled, is there a situation the legal person, the victim can not include the amount embezzled in the calculation of losses and should withhold the employee's income tax on the amount embezzled, (ⅳ) If yes for the third question, what is the grounds of the disadvantageous treatments. The focus is on logical basis of the differential income tax treatment on the victims including the legal person. A treatment system having more persuasive grounds and providing clear-cut criteria should be regarded as better. According to this analysis, U.S. and German income tax treatments are very similar. In U.S. and Germany, the victims can deduct the embezzled loss, even if there are claims for damages. U.S. and Germany consider the embezzling money as a hidden distribution, if the controlling shareholder embezzled closed company’s assets. In contrast, Korea and Japan, at the opposite side, the victims can not deduct the embezzled loss until their claims for damages expired. In addition, Korea and Japan treat embezzled money as a distribution, if any legal person’s executives or CEO embezzled. Comparing U.S. and German system with Korea and Japan’s, the former seems superior to the latter, in judging from the company’s and other legal person’s nature, the source of control power over company, the reason of considering a claim equivalent to a real right. Korea and Japan’s systems overlooked company is a pure economic-person in tax law perspective, controlling company depends on shares, and claimants for damages caused by tort cannot expect the cooperation of offenders. Our current tax treatment system against embezzlement is necessary to reform. Direction for reforms is Deleting disposition of bonus provision, changing disposition of dividends provision as U.S or German’s hidden distribution provisions, Making theft loss provision, and Making provision taxing the embezzler clearly.
Abstract
This paper decomposes the tax consequences of embezzlement of four countries into five components: (ⅰ) whether the victims may deduct the embezzled loss, (ⅱ) whether the embezzlers are taxed (ⅲ) When a legal person’s fund is embezzled, is there a situation the legal person, the victim can not include the amount embezzled in the calculation of losses and should withhold the employee's income tax on the amount embezzled, (ⅳ) If yes for the third question, what is the grounds of the disadvantageous treatments. The focus is on logical basis of the differential income tax treatment on the victims including the legal person. A treatment system having more persuasive grounds and providing clear-cut criteria should be regarded as better. According to this analysis, U.S. and German income tax treatments are very similar. In U.S. and Germany, the victims can deduct the embezzled loss, even if there are claims for damages. U.S. and Germany consider the embezzling money as a hidden distribution, if the controlling shareholder embezzled closed company’s assets. In contrast, Korea and Japan, at the opposite side, the victims can not deduct the embezzled loss until their claims for damages expired. In addition, Korea and Japan treat embezzled money as a distribution, if any legal person’s executives or CEO embezzled. Comparing U.S. and German system with Korea and Japan’s, the former seems superior to the latter, in judging from the company’s and other legal person’s nature, the source of control power over company, the reason of considering a claim equivalent to a real right. Korea and Japan’s systems overlooked company is a pure economic-person in tax law perspective, controlling company depends on shares, and claimants for damages caused by tort cannot expect the cooperation of offenders. Our current tax treatment system against embezzlement is necessary to reform. Direction for reforms is Deleting disposition of bonus provision, changing disposition of dividends provision as U.S or German’s hidden distribution provisions, Making theft loss provision, and Making provision taxing the embezzler clearly.
참고문헌 (24)
- 곽윤직, "채권총론, 재전정판" (1988), 박영사
- 문형섭, "재산범죄론의 이해: 재산범죄에 대한 실무적 관점에서의 이해" (2006), 전남대학교출판부
- 서윤식, "소득처분제도의 문제점과 개선방안 : 사외유출금액에 대한 과세문제를 중심으로", 박사, 세무학, pp.2011
- 신동운, "한국형사법학의 새로운 지평: 유일당 오선주 교수 정년기념논문집" (2001), 형설출판사
- 신호영, "임직원 횡령시 상여처분 가부에 대한 판례의 문제점 고찰", 조세법연구, 18(1), pp.277~326 (2012), 한국세법학회[DOI]
- 이창희, "세법강의, 제9판" (2011), 박영사
- 이철송, "회사법강의, 제21판" (2013), 박영사
- Bittker, "Federal Income taxation of Corporations and Shareholders, (7th Ed.)" (2000), Warren, Gorham & Lamont
- Döllerer, "Verdeckte Gewinnausschüttungen und verdeckte Einlagen bei Kapitalgesellschaften(2. Aufl.)" (1990)
- Gosch, "Körperschaftsteuergesetz, 2. Aufl" (2009)
- Schneider, Daniel M., "Characterization and Assignment of Corporate and Shareholder Income", N. Ill. U. L. Rev, 14, pp.133~ (1993)
- Schmidt, "EStg, 26 Aufl" (2007)
- Schwidetzky, Walter D., "A Comparison of Corporate Taxation in the United States and Germany: Different Ways Up the Mountain", Ga. J. Int'l & Comp. L, 28, pp.217~ (2000)
- Tipke, "Steuerrecht (18. Aufl.)" (2005)
- 金子宏, "租稅法, 第12版" (2007), 弘文堂
- 水野忠恒, "租稅法, 第3版" (2007), 有斐閣
- 村井 正, "租稅法-理論と政策, 改訂版" (1993), 靑林書院
- 品川芳宣, "重要租税判決の実務研究, 增補改訂版" (2005), 日本大藏財務協会
- 山田二郎, "税務署の判断と裁判所の判断―逆転判決の研究" (1986), 六法出版社
- 橋本淸治, "帰属不分明の支岀と課税問題", 조세와 법, 1(1) (2008), 서울시립대학교
- 碓弁光明, "判例研究日本税法体系(1)" (1978), 學陽書房
- 占部裕典, "損失の計上時期と損害賠償請求権の影響", 税法学, (475) (1990), 日本税法学会
- 淸水京次, "法人税法における損害賠償請求権の取及い", シュトイェル, (58) (1967)
- 諸隈 正, "杉村章三郎先生古稀祝賀論文集" (1970), 日本稅法學會
