[2] The method of calculating “total amount of supply value, etc.,” which is the standard for the aggravated punishment pursuant to Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (=the amount calculated by adding up all supply value specified in the tax invoice, etc., for which a crime under Article 10(3) of

[3] Where a revised tax invoice is issued and received, in the sense of cancelling the issuance and receipt of a processed tax invoice without being supplied with or being supplied with goods or services, using a negative label on the same value of supply, whether the following act of issuing and receiving the revised tax invoice constitutes a crime stipulated in Article 10(3)1 of the former Punishment of Tax Evaders Act (negative)

[4] Whether the act of issuing and receiving a revised tax invoice for the purpose of revoking such processed tax invoice after the crime under Article 10(3)1 of the former Punishment of Tax Evaders Act was committed by issuing and receiving the processed tax invoice without real transactions and then the act of issuing and receiving the revised tax invoice for the purpose of revoking such processed tax invoice (negative) / Whether the act of calculating the “total amount of supply value, etc.,” which is the standard for aggravated punishment under Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, should take into account the supply value of the revised tax invoice for the number of copies issued and received in the sense of cancelling the processed tax invoice without real transactions (negative)

1. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court rejected the Defendant’s assertion that the act of issuing and receiving a revised tax invoice constitutes a constituent element under Article 10(3)1 of the former Punishment of Tax Evaders Act (amended by Act No. 16108, Dec. 31, 2018; hereinafter the same).

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on tax invoices under Article 10(3)1 of the former Punishment of Tax Evaders Act, as otherwise in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. Article 8-2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Specific Crimes Aggravated Punishment Act”) provides that “a person who commits a crime under Article 10(3) of the Punishment of Tax Evaders Act for the purpose of profit-making shall be subject to aggravated punishment for the cases where the sum of the value of supply, the value of supply, or the amount of purchase, entered in the aggregate of the tax invoices for each seller and seller listed on the tax invoice, etc. (hereinafter “total amount of supply price, etc.”) is at least five billion won (Article 10(3)1 of the former Punishment of Tax Evaders Act (Article 10(3)1 of the Punishment of Tax Evaders Act) and where the amount of supply, sale, and purchase is at least three billion won but less than five billion won (Article 20(2)). Meanwhile, Article 10(3)1 of the former Punishment of Tax Evaders Act punishs a person who issues or is issued a tax invoice under the Value-Added Tax Act without a real transaction to normalize the order of receipt of the tax invoice (see Supreme Court Decision 2012Do768, Apr.

B. According to these provisions, Article 8-2(1) of the Specific Crimes Aggravated Punishment Act provides for the statutory punishment for the crime by combining the act under Article 10(3) of the former Punishment of Tax Evaders Act with the requirement of aggravation that the total amount of supply is above a certain amount, such as the value of supply. As such, the application of Article 8-2(1) of the Specific Crimes Aggravated Punishment Act shall be determined based on the total amount of tax invoices established for the crime under Article 10(3) of the former Punishment of Tax Evaders Act and the total amount of supply stated in the list of total tax invoices by seller and by seller (see, e.g., Supreme Court Decisions 2009Do3355, Sept. 29, 201; 201Do4397, Sept. 29, 2011; 2013Do7219, Sept. 26, 2013).

Meanwhile, in full view of the language, structure, legislative intent, etc. of Article 10(3) of the former Punishment of Tax Evaders Act, where a revised tax invoice is issued and received without being supplied with or being supplied with goods or services and then the latter is issued and received with a negative indication in the same value of supply, and where the latter’s supply value is cancelled, the latter’s act of issuing and receiving the revised tax invoice does not constitute an offense provided for in Article 10(3)1 of the former Punishment of Tax Evaders Act, but rather, an act of issuing and receiving the revised tax invoice with a negative indication on the same value of supply. In short, it is reasonable to deem that the latter’s act of issuing and receiving the revised tax invoice does not constitute an offense provided for in Article 10(3)1 of the latter Punishment Act.

Furthermore, the crime under Article 10(3)1 of the former Punishment of Tax Evaders Act was committed by issuing and receiving a processed tax invoice without real transactions. Moreover, even if a number of revised tax invoices were issued and received to the effect that such processed tax invoices were revoked, it cannot affect the establishment of the completed tax offense.

Therefore, in calculating the “total amount of supply value, etc.,” which is the standard for aggravated punishment pursuant to Article 8-2(1) of the Specific Crimes Aggravated Punishment Act, the supply value of the revised tax invoice issued and received in the sense of cancelling the processed tax invoice without real transaction is unnecessary.

C. The lower court found the Defendant guilty of violating Article 10(3)1 of the former Punishment of Tax Evaders Act, on the ground that the act of issuing and receiving a false tax invoice or revised tax invoice does not include the act of issuing and receiving a false tax invoice without real transaction, and that the act of issuing and receiving a false tax invoice does not constitute a violation of Article 10(3)1 of the former Punishment of Tax Evaders Act, and that the act of issuing and receiving a false tax invoice without real transaction does not constitute the period immediately after the act of issuing and receiving the tax invoice was issued and received, and that the act of issuing and receiving a false tax invoice did not affect the establishment of the crime, even if a revised tax invoice was issued and received to the effect that the tax invoice was revoked thereafter, on the ground that the act did not affect the conclusion of the crime was merely the subsequent act of committing the crime, and thus, the total amount of supply value, such as the amount of supply value falling under Article 10(3) of the former Punishment of Tax Evaders Act, excluding the amount of supply value, etc. issued and receiving the revised tax invoice.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and there was no error of misapprehending the legal doctrine on “total amount of supplies, etc.” under Article 10(3)1 of the former Punishment of Tax Evaders Act or Article 8-2(1) of the Specific Crimes Aggravated Punishment Act, contrary to the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)