Section 6. On Damaging Because of Defrauded Taxes

476. Obligation of restoring. 1. The question whether those defrauding taxes are bound to restitution means whether afterward they are bound to supply the omitted payment; whether a law not observed at the determined time, once the time has elapsed, still obliges. Since there is no obligation of paying indirect taxes, the question is referred to direct taxes.

a. Those who say that tax laws are penal laws consequently deny any obligation of restitution, unless it is pleasing to call the payment of the imposed penalty restitution in the case in which defrauding has been punished.

b. Those who teach that tax laws oblige in conscience and indeed from commutative justice consequently affirm also the obligation of restitution, that is, that from the same commutative justice the defrauded tax must be paid to the republic.

c. Finally those who teach that tax laws oblige in conscience from legal justice ask about the obligation of afterward paying the tax which previously had not been paid; therefore they ask whether the tax law, which was not observed at its time, must still be satisfied afterward. Now those defrauding are not bound to pay taxes afterward unless by the sentence of a judge they are obligated to this.

Nor may it be said that those defrauding the whole tax compel other citizens to have to pay more: for from the defrauding of some, the taxes of others are not increased, because there is so great an abundance of taxes that those which are paid suffice for the republic; yet if it could be shown that others therefore have to pay more, commutative justice would be injured by him who does not pay the tax; but this can scarcely ever be shown.

2. Those defrauders are bound to restitution who, after entering a pact, express or tacit, with the collectors, use force or frauds so that they may decline payment of taxes. For by an unjust means they impede the republic from obtaining a just tax, and therefore also citizens from enjoying the good of freedom from paying larger taxes.

The distinction must be noted between a tax which is imposed by a preceptive law and a tax which is imposed by a penal law. To avoid the payment of this latter, he alone uses an unjust means who uses force or a pact, but not he who uses lies or perjuries: for in this case the fisc does not have a right in the tax, but only the right of occupying the tax; wherefore a means which concerns the goods subject to tax (concealment, lie) is not unjust, but only a means which concerns the person occupying the tax (force, pact). In a similar way one does not inflict injury on a poor man existing in extreme necessity if he conceals his goods by lies, but only he who impedes him wishing to occupy the goods which he needs.

3. Collectors are bound to restitution of the tax if they culpably neglect collection: for from office they are obligated to collect them; but they are not bound to restitution of the fine which would have been imposed on the defrauders if the collectors had reported them, because the office of caring that the fisc receive a fine does not rest upon them.

Restitution which is owed because of defrauded taxes either by collectors or by citizens is not to be made to the republic, which therefore suffers no damage, but can be made to the poor or by contributing something to the common utility.