조세포탈죄의 적극적 은닉의도에 관한 고찰 ― 그 필요성과 의미를 중심으로 ―

Abstract

Tax evasion is fundamentally different from other crimes, given the indirect and incidental nature of income and property taxation as products of private economic activities, and the legislative intent to punish any act reducing tax revenues while granting the National Tax Service(“NTS”) an investigation right to balance private economic activities and tax revenues. The tax evasion has a dual structure – (1) ‘an infringement on tax receivables by false tax reporting → a reduction in tax revenues,’ and (2) ‘an income concealment → the NTS’s failure to exercise its right to tax.’ Given that the infringement on tax receivables by false tax reporting has a very simple structure and what really distinguishes tax evasion from other crimes is the income concealment and the NTS’s failure to exercise its right to tax, this paper aims to analyze the legal structure of tax evasion mainly from ‘the concealment of income → the NTS’s failure to exercise its right to tax’ point. The income concealment comprises of three stages – (1) deceiving the NTS, (2) the NTS’s failure to exercise its right to tax, and (3) the infringement on the NTS’s right to tax. Because of varying reasons at each stage, the actor’s intent to deceive and hinder the NTS from exercising its right to tax, and to infringe upon the NTS’s right to tax is required in order to accept the income concealment. First, for the income concealment – that is not yet exposed and remain in the taxpayer’s domain before tax evasion is completed – to be in contact with the NTS, the intent to deceive the NTS at the time of income concealment is needed. Second, as the intent to use an innocent agent is an element comprising the structure of ‘the Principal through Innocent Human Agent,’ the intent to deter the NTS from exercising its right to tax at the time of income concealment by using the NTS as ‘an innocent agent’ is required. Finally, considering the general nature of taxation’s legal relations, the actor’s intent to make infringement on the NTS’s right to tax by forming a special relationship between the actor and the NTS is essential to attribute responsibility for the consequences of such infringement to the actor. However, if the income concealment occurred out of the actor’s intent to deceive the NTS at any stage, and not in the natural process of private economic activities, the responsibility for the infringement on the NTS’s right to tax can immediately be attributed to the actor. As such, the income concealment itself does not constitute tax evasion by fraud or other improper means. The income concealment should have been acted out of intent to infringe the NTS’s right to tax – specifically the subjective element of affirmative intent to conceal. Consequently, the affirmative intent to conceal cannot be assumed only with the income concealment act; thus, the actor’s specific motive, circumstances and context of committing income concealment need to be considered to distinguish the affirmative intent to conceal income. The affirmative intent to conceal here refers to the intent or purpose of income concealment act by hindering and infringing the NTS’s right to tax. Thus, fraud or other improper means comprising tax evasion cannot be accepted only with the fact that there is income concealment act related to tax reduction and that the actor recognized the possibility of the NTS to find the income concealment. Only when there is a special circumstance other than the income concealment, indicating the actor’s intent to hinder the NTS, even if the NTS lawfully investigated, from exercising its right to tax, the tax evasion by fraud or other improper means can then be recognized.