‘조세포탈의 목적’의 구체적 적용에 관한 소고 ― 사기 기타 부정한 행위의 적극적 은닉의도를 중심으로(4) ―

Abstract

The purpose, intent, and affirmative intent to conceal which required by the crime of evading taxes by fraud and other unlawful acts are the intent to deceive the National Tax Service. Thus, fraud and other unlawful acts refer to concealment of income that render tax imposition and collection impossible or remarkably difficult as a means to achieve its intent to deceive the National Tax Service. Nevertheless, without clarifying what constitutes affirmative intent to conceal in determining fraud and other unlawful acts, the Supreme Court has been judging fraud and unlawful acts (without clear guideline). Consequently, it led to confusion in practice to find the standard of judging fraud and other unlawful acts. The Supreme Court, however, recently ruled on the determination of fraud and other unlawful acts based on a series of inconsistent lower court rulings through cases such as opening an account under someone else’s name to defend managerial rights, opening an account under someone else’s name to register for Initial Public Offering(IPO), and concealment of income through overseas SPCs. Therefore, this paper by reviewing the judgment bases and outcomes of suits, draws a conclusion that the Supreme Court tends to find affirmative intent to conceal is the intent to deceive the National Tax Service. Furthermore, this paper presents and analyzes some meaningful issues in terms of its specific application. However, while affirmative intent to conceal is the intent to deceive the National Tax Service which made tax imposition and collection impossible or remarkably difficult and affirmative intent to conceal as an element to constitute fraud and other unlawful acts can be recognized by the fact when there is no reasonable doubt not only about the possibility of affirmative intent to conceal, but also about the possibility of other intent even if such tax reduction resulted from concealment of income, the Supreme Court still has not been clear on the law to determine. Thus, this paper urges the Supreme Court to make such declaration on the law.