橫領과 課稅

Abstract

It is not difficult to find that judicial decisions of embezzlement cases are inconsistent. The reasons followed below could explain about these results. 1) There is no clause for taxation to embezzler on the embezzlement revenue in accordance with Income Tax Law(“ITL”), on the other hand, in accordance with the Law of Corporation Tax, embezzled income has to be taxed to company. 2) There is no clause of taxing an embezzler for the embezzlement revenue under Income Tax law (ITL). On contrary, a company could be taxed under Law of Corporation Tax 3) Income embezzled by a company deems to be distributed to the embezzler by the name of a bonus (salary) or a dividend etc (“Income Dispositon”). Then the company should withhold the stipulated portion of that disposed incomes. 4) Companies are likely to consider this withholding obligation unfair, because it is not possible to withhold disposed income from embezzler. Even though limited to some cases, the Supreme Court held taxation on companies should be revoked. However, these cases could lead to preventing taxation on embezzlers. This essay aims to identifying problems of the Supreme Court’s recent decisions and finding solutions for most of tax issues regarding embezzlement. Firstly, it is necessary to revise 1) ITL regarding taxation on embezzler, and 2) The Basic Law for National Taxes regarding claim for reassessment. Secondly, Income Disposition and withholding obligation can be possibly considered constitutional on the contrary to what most scholars argue for them. Thirdly, company’s bad debt expense regarding right of indemnity to embezzler cannot be excluded from the gross income.