(영문) 서울중앙지방법원 2018.5.18. 선고 2017고합1234 판결

Defendant shall be punished by imprisonment with prison labor for a year and six months and by a fine of three billion won. If the Defendant fails to pay the above fine, the Defendant shall be confined in a workhouse for 1,000 days. The charge of violation of the Punishment of Tax Evaders Act among the charges of this case shall be acquitted.

The summary of the judgment on the acquittal shall be publicly notified.

Reasons

Criminal facts

On March 29, 2013, the Defendant was sentenced to three years of imprisonment for violating the National Sports Promotion Act (Gambling, etc.) at the Seoul Central District Court on March 29, 2013, and the said judgment became final and conclusive on June 27, 2013.

The Defendant acquired a private sports soil site called “E” which imitates D’, which is an official Internet site of Company B and C, designated as the seller of sports promotion betting tickets, from January 201 to May 25, 201, and operated an illegal Internet gambling site by receiving money from another person’s account without registering its business from around January 2011 to around May 201, the Defendant evaded KRW 1,141,709,88 in the same manner until July 25, 2011, and evaded KRW 3,742,04,310 in the same manner until January 25, 2012; and evaded the total amount of value-added tax of KRW 1,41,709,888 in the account in the same manner as the value-added tax was paid to the competent tax office; and the Defendant evaded KRW 3,742,310,310 in the same way until July 25, 2012;

1. Defendant's legal statement;

1. Each protocol concerning the examination of the accused by the prosecution;

1. Each prosecutorial investigation report on F, G, H, I, K, K, L, M, P, Q, R, and S; 1. An investigation report on the investigation (in relation to the specification of the amount by each borrowed account, 113-115 pages of the investigation records), investigation report (in relation to the defendant's evaded tax, 116-122 pages of the investigation records), investigation report (in relation to gambling fund management account, 128-164 pages of the investigation records);

1. A written accusation;

1. Previous convictions: Court rulings, inquiry into criminal records and investigation records, and application of Acts and subordinate statutes, written assistance to the agreement of cases;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 8(1)1 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 11136, Dec. 31, 2011); Article 8(1)1 and (2) of the Punishment of Tax Evaders Act; Article 3(1) of the Punishment of Tax Evaders Act ( comprehensively including the tax evasion in 201; choice of limited imprisonment and concurrent imposition of fines); Article 8(1)1 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 14474, Dec. 27, 2016); Article 3(1) of the Punishment of Tax Evaders Act (joint imposition of fines); Article 3(1) of the Punishment of Tax Evaders Act (excluding the tax evasion in 20

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39(1) of the Criminal Act

1. Reduction following the handling of concurrent crimes;

The latter part of Article 39(1) and Article 55(1)3 and 6 of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act (limited to the limited penalty prescribed for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) due to the tax evasion in 2012, while the limited penalty on the concurrent penalty of fines under Article 38 (1) 2 of the Criminal Act is not applicable in accordance with Article 20 of the Punishment of Tax Evaders Act, since the limited penalty on the concurrent penalty of fines under Article 38 (1) 2 of

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 65(1)6 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing):

1. Detention in a workhouse;

Articles 70 and 69(2) of the former Criminal Act (amended by Act No. 12575, May 14, 2014) [Article 70(2) of the Criminal Act (amended by Act No. 12575, Oct. 26, 2017) (Article 12575, May 14, 2014); Article 2(1) of the Addenda of the Criminal Act (amended by Act No. 12575, Oct. 26, 2017; hereinafter the same shall apply) that provides that Article 70(2) of the Criminal Act shall apply from the first case of a public prosecution after the enforcement date of the said Act (amended by Act No. 12575, Oct. 26, 2017; hereinafter the same shall apply) shall be deemed to be a violation of the Constitution (Article 70(2) of the Criminal Act) (Article 70 of the same Act)];

1. Basic facts

According to the above adopted evidence and the statements of the evidence Nos. 3 and 4 submitted by the defendant and the defense counsel, the following facts are acknowledged.

A. On March 201, the Defendant accepted the “E” website (hereinafter “U”, “V”, “W”, “X”, “Y”, and “Y”, which are similar sports betting tickets sales online from “T” and operated the instant gambling site from around that time (hereinafter “instant gambling site”). (No. 103, 104, 202, 203, 248 pages of the Investigation Records).

B. The instant gambling site users collected game money according to the rates set in J, P, F, R, and S’s respective Z bank accounts under the Defendant’s management (hereinafter “each of the instant Z bank accounts”), and charged game money. The game money users predicted the work plaque of sports games, such as camping districts, farming districts, entrances, mouths, stables, dominations, and down to the maximum of 5,000 won per game to the maximum of 1,000 won from 5,000 won per game, up to 1,000, up to 300, up to 1,000, up to 45,000 foreign soil sites or 16, 16, 36, 41, 45, 16, 196, 45, 196, 14, 295, 25, 196, 25, 194, 205, 196, 45, 196, 2, 14, 2, and 10

【Unit: Won】

A person shall be appointed.

D. However, on December 4, 2017, the head of Seoul Regional Tax Office accused the prosecution that the Defendant evaded value-added tax and income tax as follows (No. 1 right 455-466 pages of investigation record). [unit : won]

A person shall be appointed.

2. Summary of the assertion

(a) The amount of money deposited into the account of 10,847, 250, 270, 360, 270, 268, 270, 276, 278, 270, 360, 278, 278, 200, 270, 360, 278, 306, 270, 366, 276, 278, 278, 200, 206, 30, 306, 205, 206, 206, 306, 276, 306, 278, 205, 206, 306, 205, 206, 206, 208, 200

B. The instant gambling site was operated by the method of gambling by the Defendant, an operator, directly with users, and so-called so-called "proto." The Defendant's operation of the instant gambling site is not subject to value-added tax because it constitutes gambling in substance.

C. The amount of money that the Defendant received from the instant gambling site users is not the whole amount of money deposited from the gambling site users, but the remaining amount after deducting the amount of money deposited by exchanging the game money received by the users as dividends is the actual sales amount of the Defendant. Thus, the value-added tax amount that the Defendant evaded should be calculated on the basis

3. Determination

A. Determination on the actual admission amount of this case

1) Of the actual entry amount in this case, there is a difference between the actual entry amount in January 201, 201, the actual entry amount in the PZ bank account in the F, P bank account in February 201, the actual entry amount in the PZ bank account in the F, R, and SZ bank account in the F, January 2012, and the amount claimed by the Defendant and the defense counsel in the claim. Such difference is based on the difference between the total entry amount in the table stated in paragraph (c)(5) of the part 1.0 of the judgment on the Defendant and the defense counsel or the exclusion amount to be deducted from the total entry amount, and thus, the examination should be conducted mainly in the below.

2) The Defendant and the defense counsel asserted that the amount of actual entry into the Z bank account in January 201 is not KRW 1,711,495,462 but KRW 1,711,478,278, and the amount of actual entry into the Z bank account in February 2011 is not KRW 13,141,141,868, but KRW 13,141,159,052. The Defendant and the defense counsel asserted that each of the aforesaid actual entry amount claimed was calculated on August 13, 2011 by including KRW 17,184,00 from the settlement interest of August 13, 2011 in the Z bank account, not from the amount of the Z bank account in February 2011 (see each week 1,4,66, and this part of the defense counsel’s assertion is rejected).

3) The defendant and his defense counsel asserted that the total amount of 28,021,345,540 won is not more than 28,020,685,540 won, and that the above amount of 1,246,696,624 won (i.e., internal account transfer + 20,000 won + 20,000 won for 1,26,61,600 won for 20,000 won for 20,000 won for 20,000 won for account transfer, 16,000 won for 20,000 won for account transfer, 10,000 won for 20,000 won for account transfer, 10,000 won for 20,000 won for account transfer, 16,000 won for 20,010 won for account transfer.

4) The defendant and his defense counsel asserted that the actual amount of the RZ bank account opened in January 2012 is not KRW 1,390,589,087, not KRW 1,390,689,087. The defendant and his defense counsel asserted that the above actual amount of the transfer amount is 434,015,480 won (=the internal account transfer amount of KRW 414,005,480 + the cash transfer amount of KRW 20,010 + the cash transfer amount of KRW 20,000). As seen above, the above exclusion amount is not included in 434,115,480 won (=the above exclusion amount is 10,000 won) from the R bank account and 40,000 won from March 21, 2012 + the cash transfer amount of KRW 10,000,000 from each of the above 40,000 won + the cash transfer amount of KRW 10,010.20

5) The Defendant and the defense counsel asserted that the actual amount of the SZ bank account opened in February 2012 is not KRW 6,161,125,383, but KRW 6,112,067,383. The above actual amount claimed by the Defendant and the defense counsel is KRW 8,278,889,803, and the excluded amount is KRW 2,166,82,420 (=the internal account transfer amount of KRW 2,165,82,420 + the cash deposit amount of KRW 1,00,00,000). As seen earlier, the Defendant and the defense counsel did not consider the total amount of the above total amount of the account opened in April 5, 2012 and KRW 6,112,067,89,803, and were excluded from the aforementioned total amount of the account opened in February 5, 2012, and thus, Defendant and the defense counsel’s aforementioned additional amount of the account opened amount is excluded from the aforementioned total amount.

B. Determination as to whether the operation of the instant gambling site constitutes a transaction subject to value-added tax

1) Relevant statutes

A person shall be appointed.

2) Relevant precedents

Article 1(1)1 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) provides that the supply of goods or services shall be subject to value-added tax, and Article 1(2) provides that the goods shall be all tangible goods and intangible goods having property value, and Article 1(3) provides that services shall be “any services and other activities having property value other than goods.” Since value-added tax is imposed on the basis of value-added created at all stages in which goods or services are produced, provided or distributed, the value-added tax shall be levied on the goods or services that are newly created, in principle, at the distribution stage of the goods or services that are newly created. Gambling is to determine the acquisition and loss of property by taking the property among the participating persons and depending on the circumstances or circumstances.

The act of gambling does not generally create value added and thus is not subject to value added tax. However, in the case of gambling business, if the customer’s money paid is not simply the price for the goods or services provided by the business operator, but also the price for the goods or services provided by the business operator, it is subject to value added tax. Therefore, in a case where a sports gambling business operator provides customers with an opportunity to participate in gambling through an information and communications network building system, etc. and receives money as consideration for such offer, even if the act promotes speculation, it constitutes the supply of goods or services with property value, and thus, it should be subject to value added tax (see, e.g., Supreme Court Decision 2016Do19704, Apr. 7, 201

3) Specific determination

Examining the instant case in accordance with the relevant statutes and the relevant precedents, the following circumstances that can be acknowledged by the evidence as seen earlier, i.e., ① the Defendant issued and sold similar sports betting tickets, and the Defendant operated the instant gambling site by paying and exchanging dividends to those who correctly predicted the outcome of sports games with some of the issued and sold sales proceeds; ② the Defendant did not directly take property between the purchaser of similar sports betting tickets and participate in gambling, but only was paid a price for the issuance and sale of similar sports betting tickets, and the acquisition of property was determined by the chance of the outcome of sports games only between the purchaser of similar sports betting tickets, ③ the money that the Defendant received as consideration for the issuance and sale of similar sports betting tickets belongs to the Defendant immediately, but the purchase price of the sports betting tickets was not returned to them, and the Defendant did not receive the value-added payment of the sports betting tickets in the process of creating and selling similar sports betting tickets as well as the value-added payment of the sports betting tickets from the purchaser of the sports betting tickets.

Since giving an opportunity to receive money that can be exchanged in the future and receiving the money is a transaction subject to value-added tax, this part of the defendant and defense counsel's assertion is not accepted.

C. Examining the instant case in accordance with the relevant laws and regulations regardless of the user’s claim on the amount of money to be deducted from the user’s payment of value-added tax (see Article 3-1(1) of the Value-Added Tax Act), Korea’s value-added tax law, which provides the game money to the user of the instant game service, is imposed on the user’s payment of money for the use of the said game money (see Article 3-1(1) of the Value-Added Tax Act) regardless of its nature of transaction tax imposed on the external transaction rather than the income tax, corporate tax, and the cost may be imposed on the user’s profit or loss. Under such premise, the Act stipulates that the amount of money to be deducted from the value-added tax base, namely, money received from the user of the instant game machine is not subject to the above provision of money to the user’s payment of money for the use of the said online game machine (see Article 4(1) of the Value-Added Tax Act).

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment: 570,854,944 won - 1,427,137,360 won for the evasion of value-added tax in 2012,335,217,174 won from 5,838,042,934 won for the evasion of value-added tax in 2011

2. The sentencing guidelines do not apply, since the previous and the latter concurrent crimes of Article 37 of the Criminal Act, which have become final and conclusive in the judgment of the scope of recommending the sentencing criteria.

3. Determination of sentence: The crime of this case committed by the Defendant in the amount of one year and six months of imprisonment, and a fine of three billion won or more, by failing to report and pay value-added tax even when the Defendant received money for charging game money from the users while operating the illegal sports soil site. Such act of tax evasion leads to the failure of the State to impose and collect taxes, thereby disturbing tax order by making it difficult to impose and collect taxes, and causing damage to tax justice by passing the burden on the general public. Therefore, the liability for such crime is not easy; the total amount of the evaded tax amount is considerably large to 5.8 billion won or more; and the Defendant does not pay the evaded tax amount; and the Defendant does not pay the evaded tax amount.

However, the crime of this case is a concurrent crime between the previous conviction and the latter part of Article 37 of the Criminal Act.

The principle of equity in the case where a judgment was rendered at the same time in the crime of this case shall be taken into consideration; the defendant has been sentenced to imprisonment in the case related to the crime of this case and has served for a considerable period of time; his/her mistake is against him/her; and the defendant's age, growth process, family relationship, details and method of the crime, circumstances before and after the crime of this case, etc. shall be determined as ordered by

Parts of innocence

1. Summary of the facts charged

After taking over the private sports soil site called â€˜E', which copied â€˜D', which is the official Internet site of corporation B and C, designated by the Korea Sports Promotion Foundation as the seller of sports promotion betting tickets, the Defendant respectively evaded income tax of 2,035,541,763 won in May 31, 201 and income tax of 398,647,857 by the same method until May 31, 2012, when operating the illegal Internet gambling site by receiving deposits from another person's account without registering its business from January 201 to May 2012.

2. Defendant and his defense counsel’s assertion

The Defendant’s actual income amount is not all the amount of money deposited from the instant gambling site users, but the remaining amount of money obtained by deducting the amount of money deposited by exchanging the game money received by the users as a dividend from the amount of money. Thus, the amount of income tax that the Defendant evaded should be calculated based on such amount.

3. Determination

(a) Facts of recognition;

According to the above evidence, the details of the withdrawal or transfer from each Z bank account of this case are as follows (No. 115 of the Investigation Records No. 1, No. 3, No. 4 of the No. 1, No. 3, and No. 4 of the Investigation Records)

A person shall be appointed.

B. Relevant statutes

A person shall be appointed.

C. Specific determination

1) Examining the instant case in accordance with the relevant laws and regulations, it appears that the amount of money deposited in cash from the total amount of each Z bank account of this case and the amount of money deducted from the amount of money transferred to the account of J, P, F, and S under the name of the above AH bank account is the amount of money distributed to the users of the instant gambling site in exchange for the game money distributed to the users in return for the use of the sports games. As such, the amount of money withdrawn by the users as above is the amount of money, which is the incentive for the users of the instant gambling site or the amount of money similar thereto, which has the nature of expenses corresponding to the total amount of income, namely, expenses necessary for the operation of the instant gambling site. Accordingly, it is reasonable to deem that the amount of tax base for the actual income of this case constituted the amount of money deducted from the amount of money withdrawn by the users as the actual income of the Defendant, and the amount of income tax evaded by the Defendant should be calculated based on this.

2) However, according to the above facts: (i) the amount of 10,017, 16, 178 won (i) the total amount of 12,527,140, 964 won (=the total amount of 12,527, 140, 964 won) - the amount of 20, 281, 240, 297, 297, 207, 201, 297, 317, 207, 205, 207, 205, 207, 207, 317, 207, 205, 317, 207, 205, 317, 201, 205, 317, 205, 201.

3) Therefore, if the instant dividend amount in 2011 and 2012 is deducted from the necessary expenses, the Defendant is not subject to income tax in 2011 and 2012 to be reported and paid to the competent tax office. On the contrary, it is difficult to recognize the facts charged premised on the Defendant’s evasion of income tax in 2013,647,857 and income tax 2,035,541,763 in 201.

4. Conclusion

Thus, among the facts charged in this case, there is no proof of criminal facts as to the evasion of income tax in 2011.

Article 325 (latter part) of the Criminal Procedure Act provides that a person shall be acquitted pursuant to the latter part of Article 325 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax). However, as long as a person is found guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) in relation to a single comprehensive crime, the sentence shall not be rendered separately, and the part of the evasion of income tax in 2012 constitutes a case where

Judges

The presiding judge, the Kim Jong-dong

Judge Political decoration

Judge Lee Sang-hoon

Note tin

1) The sum of the amounts transferred from the account in the name of J, P, F, R, and S, cash deposit amount, settlement interest, etc. to each of the instant Z Bank accounts:

Since it is not the amount of money deposited by the Z bank users, the amount of money obtained by deducting it from the total amount of each Z bank account of this case is the actual account of the users.

It is a higher-ranking amount.

2) hereinafter referred to as “the actual amount of entry” in this case.

3) The excluded amount = 112,807,221 won = the cash input amount of KRW 10,000,000 as of April 11, 201 + the cash input amount of KRW 1,000,000 as of May 9, 201 + the amount of KRW 1,00,000 as of May 14, 201.

10,221 won + 101,797,00 won transferred from the account under J’s name

4) The exclusion amount of KRW 20,001,538 from April 11, 2011 to KRW 20,000,000 from the cash deposit amount of KRW 1,538 from the settlement interest amount of KRW 5,538 from April 5, 201

5) The exclusion amount of KRW 1,246,036,624 = the cash input of KRW 20,000,000 as of June 27, 201 + the settlement interest amount of KRW 2,185 on August 13, 201 + the settlement interest amount of KRW 2,185 + November 12, 2011.

Amount of settlement interest 3,439 won + Amount transferred from an account in the name of F 1,226,001,000 won

6) Excluded amount = 301,477,184 = Amount of interest settled on August 13, 201 at the settlement of accounts as of August 13, 201 + Amount of KRW 17,184 + Amount of transfer from the P account under the name of KRW 301,460,000.

7) The excluded amount of KRW 912,920,000 * The transferred amount of KRW 912,920,000 from the F Account

8) The excluded amount = 434,115,480 won = the cash input amount of 10,000 won as of March 21, 2012 + the cash input amount of 12,000,000 won as of April 1, 201 + the date of April 3, 2012.

Amount of gold KRW 8,00,000 + Amount of KRW 100,000 from the R’s account + Amount of KRW 414,005,480 from the S’s account

9) Total amount of KRW 8,346,949,530 from April 5, 2012 to KRW 68,059,727 + Total amount of KRW 8,278,89,803 after April 6, 2012

10) The exclusions 2,185,824,147 Won 29,01,727 + + the exclusions 2,156,822,420 won on April 5, 2012.

11) Income tax calculation table

A person shall be appointed.

12) In calculating the income tax amount for the year 201 in which the Defendant evaded, the Seoul Regional Tax Office is simply a value-added tax base amount for the year 2011.

In applying the ratio of 88% to the above 12% of the tax base amount as the defendant's actual income.

13) In calculating the income tax amount for the year 2012, the Seoul Regional Tax Office determined that 12% of the above tax base amount was the Defendant’s actual income by applying the simple expense rate of 88% to the tax base amount for value-added tax in 2012.

14) Account cancellation money is an account cancellation money.

15) Account cancellation money is an account cancellation money.

16) Account cancellation money is an account cancellation money.

17) It is an authorized certificate issuance fee.

18) Account cancellation money.

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