[2] Whether a withholding agent may be an accomplice for a crime of tax evasion (affirmative), and the meaning of "Fraud and other unlawful acts" under Article 9 (1) of the Punishment of Tax Evaders Act

[3] Whether resident tax should be withheld from a foreign corporation (affirmative)

[2] The crime under Article 11 of the Punishment of Tax Evaders Act, which does not collect the withholding tax from the taxpayer without any justifiable reason, or which is punished by the act of not paying the collected tax amount, is clearly distinguishable from the so-called crime of tax evasion under Article 9 (1) 3 of the same Act. However, the withholding agent can always be the only subject of the above crime under Article 11 of the Punishment of Tax Evaders Act, and it cannot be the accomplice for the crime of tax evasion. In addition, if the withholding agent agrees with the withholding agent under an agreement with the taxpayer to bear the withholding tax amount, it can only be established under Article 11 of the Punishment of Tax Evaders Act, and it cannot be said that the accomplice for the tax evasion of the taxpayer cannot be established. In addition, the "Fraud or other unlawful act" under Article 9 (1) of the Punishment of Tax Evaders Act means fraudulent or other unlawful act that makes it impossible or significantly difficult to impose and collect taxes, and it does not constitute a false report or a false report under Article 9 (1) 1 of the same Act.

[3] According to the provisions of Articles 172, 173(2), and 179-3 of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994), and Article 130-9 of the Enforcement Decree of the same Act, resident tax to be imposed on a corporation is, in principle, liable for payment of corporate tax within a Si/Gun. However, it is clear that a foreign corporation that becomes liable for payment of corporate tax to be imposed on domestic source income pursuant to Article 179-3 of the same Act and Article 130-9 of the Enforcement Decree of the same Act, which is the basis for special collection of resident tax, is also liable for tax payment.

1. As to the Prosecutor’s Grounds of Appeal

Article 9(1) of the Punishment of Tax Evaders Act is a statutory person responsible for the tax evasion under Article 2 subparag. 9 of the Framework Act on National Taxes, the representative of a corporation or an individual, the agent, employee, and other employees of a corporation or an individual under Article 3 of the Punishment of Tax Evaders Act. A person who does not have such status is a withholding agent, even if he/she is a withholding agent, he/she may be an accomplice in the tax evasion, and may not independently become an agent of tax evasion (see Supreme Court Decisions 97Do1908, Oct. 28, 1997; 92Do299, Aug. 14, 1992). Therefore, even where a withholding agent in collusion with several taxpayers and evades taxes, the agent of tax evasion is only a person liable for tax evasion, and the withholding agent is merely a co-offender processed in the tax evasion of each taxpayer, and it does not constitute one crime. Therefore, whether the annual amount of tax evasion is subject to the application of Article 8 of the Act on the Aggravated Punishment, etc.

According to the reasoning of the judgment below, the court below held that the defendant's motion picture import from Hong Kong's film export company located in Hong Kong in 192 and the defendant's evasion of corporate tax on domestic source income in collusion with their exporting company constitutes one crime for each exporting company, and that in the case of "use loss", 10,707,119 won for 110,707,119 won for 100,000 won for 10,000 won, which is the lowest limit applicable under Article 8 (1) 2 of the Aggravated Punishment of Tax Evaders Act and 200,000 won for 20,000 won for 20,000 won for 20,000 won for 30,000 won for 30,000 won for 20,000 won for 30,000 won for 19,000 won for 33,000 won for 3,000 won for 36.

In light of the records, we affirm the above fact-finding and determination by the court below as just, and there is no error of law by misunderstanding the legal nature of the withholding duty under the Corporate Tax Act, or by misapprehending the legal principles as to the subject of tax evasion and the subject of application of Article 8 (1) of the Act on Special Cases. The grounds for appeal on this point cannot be accepted.

2. As to the grounds of appeal by defense counsel

A. As to the grounds of appeal by the public defender Kim Byung-jin, and the grounds of appeal by the private defense counsel, as to the violation of the rules of evidence among the first and second grounds of appeal by the private defense counsel

According to the reasoning of the judgment below, the court below found the defendant guilty of evading part of corporate tax on domestic source income of each film export company in Hong Kong by taking account of each evidence cited by the court of first instance and the evidence additionally examined by the court below, and found the defendant guilty of evading part of corporate tax on domestic source income of each film export company in collusion with each film export company located in Hong Kong by taking import of the film such as "Jin-ri Sea", "Jin-ri Sea", "Jin-si (Din-do)", "In the year 1993," "In the year 194," "In the year 194," "In the year 194," "In the name of the non-indicted company," "In the year 194," "In the year 194," "In the name of the non-indicted company," "In the name of the non-indicted company," and there is sufficient evidence to find that there is no voluntariness or credibility of such confession.

In light of the records, we affirm the above fact-finding and the determination of the value of evidence by the court below as just and there is no error of misconception of facts, lack of reason or inconsistency of reasoning due to the violation of the rules of evidence. The grounds of appeal as to this point are not acceptable.

B. As to the misapprehension of legal principles among the grounds of appeal No. 2 by a private defense counsel

The crime stipulated in Article 11 of the Punishment of Tax Evaders Act, in which a withholding agent fails to collect a withholding tax from a taxpayer without any justifiable reason, or does not pay the collected tax, is clearly distinguishable from the so-called crime of tax evasion under Article 9 (1) 3 of the same Act. However, the withholding agent may always be a principal agent only for the crime stipulated in Article 11 of the Punishment of Tax Evaders Act, and shall not be a accomplice for the crime of tax evasion. In addition, in such a case where a withholding agent has agreed with a withholding agent under an agreement with the taxpayer to bear the withholding tax amount, it can only be established as a crime under Article 11 of the Punishment of Tax Evaders Act, and it cannot be said that the accomplice for the tax evasion of the taxpayer cannot be established.

In addition, the "Fraud and other unlawful acts" under Article 9 (1) of the Punishment of Tax Evaders Act refers to fraudulent or other active acts that make it impossible or considerably difficult to impose and collect taxes, and it does not correspond to the mere failure to report under the tax law or making a false report without accompanying any other acts (see, e.g., Supreme Court Decisions 95Do2653, May 9, 1997; 85Do1518, Mar. 8, 198). However, as recognized by the court below, insofar as the defendant actively prepares and uses two contracts, etc., it can be deemed that the "Fraud or unlawful methods" under Article 9 (1) of the Punishment of Tax Evaders Act is used.

Therefore, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles as to tax evasion. This part of the grounds for appeal cannot be accepted.

C. As to the third ground for appeal by a private defense counsel

According to the provisions of Articles 172, 173(2), and 179-3 of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994; hereinafter referred to as the "Act"), and Article 130-9 of the Enforcement Decree of the Local Tax Act, resident tax to be imposed on a corporation liable for corporate tax within a Si/Gun as a matter of principle is a taxpayer. However, it is clear that a foreign corporation, under Article 179-3 of the Act, which is the basis for special collection of resident tax, becomes a taxpayer for corporate tax on domestic source income pursuant to Article 59 of the Enforcement Decree of the Corporate Tax Act and Article 130-9 of the Enforcement Decree of the same Act, is also a taxpayer

Therefore, in this case where the defendant imported the film of this case from Hong Kong's film export company located in Hong Kong, and the defendant bears the withholding tax amount, the domestic source income of Hong Kong's film export company located in Hong Kong shall be the sum of the amount actually paid by the defendant as well as the amount of the resident tax withheld under Article 179-3 of the Act. Thus, in calculating the evaded corporate tax of this case in collusion with the film export company located in Hong Kong, the defendant should calculate the income amount generated from domestic sources added to the withheld resident tax as the tax base. Therefore, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles on resident tax withholding. The grounds for appeal

D. As to the ground of appeal No. 4 by a private defense counsel

According to the records, the court below's accusation of the tax official of this case was accompanied by the document "the name of the film, the export company and the details of tax evasion in detail" as to the evasion of corporate tax in relation to the import of the film, "to the 1993 Reading Inspection", which is based on the rate under Article 9 (1) 3 of the Tax Act, and therefore, it cannot be said that there was an error of law that found the guilty guilty of violating the indictment requirements in the judgment below which found the guilty. The grounds of appeal as to this issue are not acceptable.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)