[2] The case affirming the judgment below which held that the act of the defendant's act of having a certified tax accountant prepare a book with a content different from the actual sales and having him report value-added tax and global income tax even though he was registered as a business operator under his name and received sales money through a borrowed account, constitutes "Fraud or other unlawful act" under the former Punishment of Tax Evaders Act

[3] The relation between the crimes of violation of the former Punishment of Tax Evaders due to the failure to withhold taxes

[4] In a case where the defendant was prosecuted for violating the former Punishment of Tax Evaders Act on the ground that he did not withhold tax on wage and salary income, the case holding that the court below erred in the misapprehension of legal principles as to the number of crimes committed on the premise that one crime is constituted by each business year

[2] The case affirming the judgment below which held that the Defendant’s act of fraud or other unlawful act constitutes “Fraud” under the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919 of Jan. 1, 2010), and that the tax evasion cannot be the same as mere omission of sales or underreporting, and that the intent of tax evasion is recognized.

[3] The elements of the crime of violation of the former Punishment of Tax Evaders Act stipulating that a withholding agent did not withhold wage and salary income are not the payment of wage and salary income, and thus, a single comprehensive crime is established against all wage and salary income; however, when paying monthly wage and salary income, a crime of failing to withhold income tax and a crime of failing to withhold income tax based on the year-end adjustment is established. Each of the above crimes is a substantive concurrent crime.

[4] In a case where the defendant was prosecuted for violating the former Punishment of Tax Evaders Act on the ground that he did not withhold tax on wage and salary income, the case holding that the court below erred by misapprehending the legal principles as to the number of crimes committed on the premise that one crime is constituted by each business year

1. "Fraud or other unlawful act" in the crime of tax evasion provided for in Article 9 of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010) means an act which makes it possible to evade taxes, i.e., acts which are recognized as illegitimate under social norms, i.e., deceptive scheme which makes it impossible or considerably difficult to impose and collect taxes, and other active act. It does not constitute mere failure to file a tax return under tax law or filing a false tax return without accompanying any other act (see, e.g., Supreme Court Decisions 2001Do3797, Feb. 14, 2003; 200Do63797, Feb. 14, 200; 200Do650, Jun. 6, 2008).

Examining the facts in light of the evidence duly admitted by the court below and the court below, it is just for the court below to acknowledge the facts in its holding, and to determine that the defendant's act of having a certified tax accountant prepare a book different from the actual sales and to have him file a return on value-added tax and global income tax on the materials which omitted part of the sales amount which the defendant registered as a business operator by lending his name and did not issue a tax invoice, and omitted part of the sales amount and the payment amount paid to the certified tax accountant, constitutes "Fraud or other unlawful act" where the defendant's active concealment intention is revealed, and that this cannot be the same as a mere omission of sales or underreporting, and that the defendant'

2. Article 11 of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010) provides that "where a withholding agent of tax fails to withhold the said tax or to pay the tax collected without justifiable grounds, he/she shall be punished by imprisonment for not more than one year, or by a fine equivalent to the amount of unpaid tax." According to the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) the income tax shall be levied on the amount of income for one year from January 1 to December 31 (Article 5 (1)). When a withholding agent pays the monthly earned income of Class A, he/she shall withhold the income tax according to the simplified tax withholding table for employment income if he/she pays the income tax for the same year after deducting the amount of monthly earned income of the person who has already paid the said earned income from the date of his/her global income tax withholding for two months following the relevant year, the withholding agent shall withhold the income tax for the following year from his/her global income tax base.

In light of the above legal principles, the first instance court maintained by the lower court determined that the crime was committed on the premise that one of the crimes was established for each business year due to non-performance of withholding tax on the wage and salary income in the judgment, and that the crime was committed. In so doing, the lower court erred by misapprehending the legal principles on the number of crimes committed in violation of the former Punishment of Tax Evaders Act, thereby affecting the conclusion of the judgment (the crime of violation of the former Punishment of Tax Evaders Act is established when paying the wage and salary income for each month, and the statute of limitations should also be calculated for each crime).

3. Therefore, the part of the crime of violation of the former Punishment of Tax Evaders due to non-performance of withholding tax on wage and salary income in the judgment below shall be reversed. Since one sentence is imposed on the remaining crimes of the defendant and concurrent crimes in the former part of Article 37 of the Criminal Act, the entire judgment of the court below is reversed and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Young-chul (Presiding Justice)