聯德電子涉外稅捐逃漏、公司治理與洗錢防制之探討

Cross-Border Tax Evasion, Corporate Governance, and Anti-Money Laundering: A Case Study of Bestec Co.

聯德電子經營階層疑似從十多年前公司逐步開始公開發行、興櫃、上市的過程，即預先佈局股權安排，利用將公司資金迂迴匯出再轉回予境內個人，以供作經營家族的個人增資股款，虛增家族可掌控股權，之後並逐年分派鉅額股利，使獲利高達數億元。若從今日法制觀點，上開安排不僅涉及利用境外公司、帳戶，從事迂迴逃漏稅、架空公司治理，亦隱含證券舞弊、洗錢嫌疑。然而，案發當時因資金流程異常，稽徵機關啟動調查後，將全案定調為聯德電子與家族股東逃漏公司、個人應納稅負，僅補徵稅款與罰鍰合計約1.6億餘元，不惟遠低於不法利得，也未追究相關公司治理與證券舞弊各項爭議。本個案擬以此則實例，分從課堂教學、企業營運與監管法制分析的角度，剖析並釐清整體不法行為的事態本質與所涉問題範圍，應當不止於稅捐逃漏而已。公司與證券舞弊因異常金流的行為外觀，容易觸發逃漏稅稽核程序，而在反洗錢新制實施後，例如不法利得的認定與沒收、舞弊受害者，乃至於監管環節的失靈等，皆為今日值得深入觀察的重點。本文也欲藉此個案討論，提出現行公司、證券監理與反洗錢、逃漏稅偵查的興革建議，尤其國內現行欠缺跨機關之資訊分享與調查協作，未來亟待建立有效之合作機制。 In 2002, the Taiwanese company Bestec Power Electronics Co., Ltd (hereafter referred to as BESTEC) was preparing to file a public listing application. The company’s management orchestrated a fraudulent share scheme to secure absolute control for Chairman Chen’s family. BESTEC initially announced a considerable capital increase. They wired US$ 5.1 million in cash, under the disguise of processing fees to a Mauritian paper company’s OBU account. Top Tier Co., Ltd was established under the name of a young family member, who was a student at the time, and therefore had no substantial business presence. On the following day, US$ 5 million was wired back to Taiwan from the same OBU account and was deposited into five domestic bank accounts that belonged to Chairman Chen’s close relatives. Subsequently, US$ 5 million was funneled back to BESTEC as payments for purchasing nearly 90% of the new shares that were issued in the company’s seasoned common stocks offering. Moreover, after the aforementioned fraudulent capital increment, BESTEC consecutively distributed numerous lucrative cash and stock dividends, most of which went to members of the Chen family. At this time, a series of suspicious offshore cash flows and potential income tax evasion were detected by the Central Bank of Taiwan, who relayed the information to the tax authorities in Taiwan. However, the tax authorities concluded the investigation, declared it as pure tax avoidance, and charged additional tax assessments and fines based only on a small portion of the considerably wider illegal gain scheme. In this case, the tax authority did not handle the capital arrangement scheme and even “legitimized” some of the embezzled company funds for the Chen family. This case study demonstrates that severe company and securities frauds can be hidden beneath apparent tax evasion. From a corporate governance perspective, such suspicious and irregular arrangements and cashflows often trigger other increasingly severe legal issues, including anti-money laundering investigations and the expropriation of company assets through the control of shareholders. This study identifies the sources of illegal gains, the true victims of frauds, and the malfunction of corporate governance and securities supervision. A “whole-of-government” approach, comprising a cooperation platform and an interagency information sharing mechanism, is essential for amending the current regulatory loopholes.