사용인의 부정행위에 따른 가산세 중과처분과 장기 부과제척기간 적용에 관한 小考：대법원 2021. 2. 18. 선고 2017두38959 전원합의체 판결을 중심으로

Abstract

[Purpose]The purpose of this study is to review the legal logic and opinion on the Supreme Court Decision 2017Du38959, which examines the majority opinion and the minority opinion on the view of a taxpayer’s responsibility from Insiders’ fraudulent act in detail. [Methodology]This paper uses legal analysis on the literature and case reviews. [Findings]These results have the following implications. Firstly, it revises the logical structure of the majority’s opinion in the Supreme Court Case 2017Du38959. The majority’s opinion drew the limitation for taxpayer’s responsibility due to employee’s insider fraud by non－inclusion of taxpayer’s deemed activity. It makes a logical paradox about a set of wrongdoing in taxation. On legal basis of the majority opinion’s view, it is reasonable to elaborate the case on the basis of the justifiable ground in the tax law. Secondly, it examines the minority’s opinion of the Supreme Court Case 2017Du38959 for the view of special period rules of tax imposition in the tax law. The minority’s opinion regarded application of long－term period on tax imposition as some administrative penalty against taxpayers. However, This view’s content does not consider to affect tax fairness and tax avoidance problems irrelevant with time. [Implications]This paper suggests some improving points to amend the special period rules for tax imposition. Considering the case of Japanese tax law revision, the special period rules of tax law have the same timeline as the statue of limitation on tax evasion.