소득세제상 횡령 취급에 대한 비교법적 연구

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.