Whether Article 8 (1) of the Special Act is applied to the evasion of defense tax and the application of the special Act

The defense tax is also a kind of national tax, but there are special provisions on punishment in Article 13 of the Punishment of Tax Evaders Act in addition to the Punishment of Tax Evaders Act, so the "national tax" under Article 9 (1) 3 of the Punishment of Tax Evaders Act is not included in the defense tax but does not fall under Article 8 (1) of the Specific Family Act.

Article 9 of the Punishment of Tax Evaders Act, Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

Defendant 1 and one other

Prosecutor and Defendants

Seoul District Court Branch Branch (81 Gohap242)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for three years and by fine for three hundred thousand,00,000 won (300 million won) and by imprisonment for two years and six months.

When Defendant 1 does not pay the above fine, the same defendant shall be confined in a workhouse for the period calculated by converting 500,000 won into one day.

The number of detention days prior to the pronouncement of the original judgment against Defendant 1 shall be included in the above imprisonment for the same accused.

However, the execution of the above imprisonment for five years shall be suspended for Defendant 1 from the date this judgment becomes final and conclusive, and the execution of the above imprisonment for three years for Defendant 2, respectively.

The sentence of a fine against Defendant 2 shall be suspended.

1. Grounds for appeal;

1. Reasons for appeal by Defendant 1;

(A) The first summary of the grounds for appeal of Defendant 1 in the fraudulent case No. 81702 (the grounds for appeal of the defendant's counsel against this part are clear that it has been submitted after the deadline for submitting the grounds for appeal, and it shall be examined to the extent of supplement in case of supplement in case of supplement in the grounds for appeal) of the first summary of the grounds for appeal of the defendant 1 in the fraudulent case (the grounds for appeal of the defendant's counsel against this part shall be examined to the extent of supplement in case of supplement in case of supplement in case of supplement in case of the defendant's appeal) shall be notified in advance to the victims of the lease price of this case and the lease contract shall be concluded, and the defendant shall not be accused of the victims. The court below found the defendant guilty

(B) As to the case No. 81No1302, the first ground for appeal by the defendant's defense counsel is that the court below erred in misconception of facts that could affect the judgment, and the contents thereof are.

First, at the time of the original adjudication, three stores, 101, 102, and 127, among the facts in the first instance, were sold directly by the company to the actual users, and there was no fact that the defendant sold it to the company, and the court below found the defendant guilty on this part as well, and the court below convicted the defendant on this part.

Second, in calculating the income tax on the defendant's resale profit, the defendant should have deducted the above amount from the resale profit in calculating the income tax on the defendant's resale profit since the defendant paid 50 million won to the company the nine commercial districts sold to the owner of the land of the commercial building in the non-indicted 1 corporation among them to the owner of the land of the commercial building in the case. However, the court below did not deduct it;

Third, in the operation of the business where the defendant resells the right to sell commercial buildings in this case, the defendant was not limited to the capital of the defendant, but was invested from a large number of so-called so-called group of members, and the profit was distributed according to the investment ratio, and the court below misunderstood that the defendant's income was the whole profit from the resale.

Fourth, the Defendant paid a large amount of necessary expenses, such as salary for employees, vehicle maintenance expenses, and newspaper advertising expenses, in operating the shopping district resale business in this case, the lower court did not deduct the necessary expenses in calculating taxes; and

Fifth, the defendant's interest in the resale should be viewed as a brokerage income, not a real estate income, and the excess should be applied to 30 percent of the brokerage profit, but the court below considered the real estate income as a tax base for the whole proceeds of resale; and

Sixth, the notice of tax payment issued by the Gangnam District Tax Office with regard to the portion in arrears in the case of the original adjudication, i.e., the tax payment notice issued by the defendant with respect to the portion in arrears, which was issued by the defendant, cannot be viewed as a crime even if the tax payment notice was imposed on the basis of taxation data with no basis different from the fact and was in arrears three times or more times, and the court below erred by misapprehending the legal principles of Article 8 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 9 (1) of the Punishment of Tax Evaders Act, and the second decision of the court below was erroneous. In other words, even if the defendant resells the right to sell commercial buildings in this case at the time of the resale of the right to sell commercial buildings in this case, it was customary that the defendant did not report the income according to the custom at the time, and it was unlawful that the court below did not determine the defendant as a crime of tax evasion, and the third decision of the court below is too inappropriate.

2. Grounds for appeal by Defendant 2

Defendant 2’s first point of the summary of the grounds for appeal by Defendant 2’s defense counsel was that Defendant 2 was in charge of the commercial sales business as a proxy of the management division, and that Defendant 1 did not assist Defendant 1 in tax evasion, and that Defendant was not in the position of the company to conduct such act. The court below found Defendant 1 as co-principal, which affected the conclusion of the judgment, and the second point of the judgment of the court below is erroneous in the misapprehension of legal principles that affected the conclusion of the judgment. In other words, according to Articles 2 and 15 of the Value-Added Tax Act, the person liable to collect value-added tax should collect and pay value-added tax from the person who supplied the goods, although the person who supplied the goods was a supplier of the goods. In this case, Defendant 1 did not evade value-added tax collected by selling the apartment house, and the court below's decision that the value-added tax was unlawful because it did not constitute an evasion of the punishment.

3. The gist of the grounds for appeal against the Defendants in the 81No1302 case is that the judgment of the court below against the Defendants is too uneasible and unreasonable.

2. Determination on the grounds for appeal

1. Determination on Defendant 1’s grounds of appeal

First of all, we examine the third or fifth points of the summary of the grounds for appeal of the defendant in the above case No. 81702, defendant 1's 81No1702, and the third or fifth point of the defendant's first point of the grounds for appeal of the defendant's defense counsel in the above case. In light of the records, we can sufficiently find the facts of the judgment of the court below as to the assertion of mistake of facts as stated in the above. In particular, we can see that the defendant's testimony of non-indicted 2 and the witness's testimony and part of non-indicted 3 of the court below's witness at the trial and the witness at the court of the court of the court below's 81No1702, and the defendant's second or fifth point of the first point of the grounds for appeal of the defendant in the above case, and the defendant's testimony at the court of the court below at the court of the court below and the defendant's non-indicted 6's statement in the name of the witness and the name of the non-indicted 3's apartment.

Then, examining the second point of the grounds for appeal by the defendant in the 81No1302 case, as pointed out in the arguments, it is insufficient to readily conclude that the failure to impose tax on the press income at the time is customary, and that the defendant evaded the tax of this case not with regard to the transfer income of real estate, but with regard to the transfer income of real estate, the defendant evaded the comprehensive income tax. The so-called "the defendant was not reprimanded merely about the failure to report the global income tax, but actively concealed the fact of resale. Therefore, such concealment constitutes an illegal act under Article 9 (1) of the Punishment of Tax Evaders Act. Therefore, there is no argument in the appeal

Finally, according to the testimony of Non-Indicted 3, 7, and 8 of the witness at the trial and the testimony of Non-Indicted 3, 77 of the court below as to the first point out of the first point of the appeal No. 81No1302 of the summary of the case, there is no fact that the defendant 1 sold three of the first instance facts to the end of the non-indicted 1 corporation, and the defendant 1 paid 50 million won to the company with the presses in addition to the proceeds of the resale of the commercial case, since it cannot be said that the defendant had the income of the above three of the above three of the stores, it cannot be said that the defendant evaded taxes for that part, since the testimony of Non-Indicted 3, 7, and 8 of the witness at the trial and the testimony of Non-Indicted 3, and 7 of the witness at the trial at the court below, there is no fact that the above two of the judgment below should be deducted from the second instance court's income of the above non-indicted 1 corporation.

2. Determination on the grounds of appeal by Defendant 2

First, we examine the first point of the appeal by Defendant 2's defense counsel in light of the records, and comprehensively examine various evidences duly adopted by the court below after finishing the examination of evidence in light of the records, we can fully recognize the criminal facts of the defendant, which the court below decided, and even if examining the records, we cannot accept the appeal for erroneous determination of facts since there were no errors of law as pointed out in the process of fact-finding by the court below.

Then, according to Article 2 (1) of the Value-Added Tax Act, the above summary of the grounds for appeal provides that "any person who independently supplies goods or services for business purposes is liable to pay value-added tax," and Article 15 of the same Act provides that "if a business operator supplies goods or services, he shall collect value-added tax from the person who receives the supply of the goods or services." According to the interpretation of the above provision, a supplier of goods shall not collect value-added tax, and shall be liable to pay taxes. In addition, according to Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, a person who commits a crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act shall be punished aggravatingly." According to Article 9 (1) of the Punishment of Tax Evaders Act, the concept of tax evasion shall be punished in cases where he evades taxes, refunds taxes, or deducts taxes by fraud or other unlawful means. It shall also be interpreted that the concept of tax evasion includes not only the case where the taxpayer evades taxes by failing to pay taxes actively, but also the case where the taxpayer becomes liable for tax payment by unlawful means.

Finally, it is examined ex officio. Defendant 2 was prosecuted as a co-principal with regard to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 1 and Defendant 2, and the trial was continued as a co-defendant even after the trial was in the first instance. Thus, the reason for reversal of mistake of facts as to Defendant 1 as to Defendant 1 should be common with Defendant 2. In this regard, the judgment of the court below against Defendant 2 should not be dismissed.

Therefore, the judgment of the court below against the Defendants cannot be reversed in its entirety, and without determining the remaining grounds for appeal by the Defendants or the grounds for appeal by the prosecutor, the judgment below against the Defendants is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act or Article 364-2 of the Criminal Procedure Act, and the members of the party are again decided

1. (Name omitted) Defendant 1 is the representative of his superior, and Defendant 2 was the representative of the apartment business division manager of the non-indicted 1 corporation, the apartment business division manager of the company.

① On April 30, 1978, the Defendants: (a) concluded that Defendant 2 shall sell the stores of the above commercial building in the name of the company located in Jung-gu Seoul (hereinafter omitted); (b) on April 30, 1978, the said company’s apartment business division with the company located in Gangnam-gu (hereinafter omitted); (c) around 827.21, Defendant 1 shall sell and sell the said stores en bloc to Defendant 1; (d) Defendant 1 shall not sell and sell the said commercial building in the name of the company, as well as the above share of the commercial building; (e) as if Defendant 1 had registered the pre-sale purchaser in the first place in the company and sold it directly to the pre-sale purchaser, and (e) decided to evade national taxes by concealing Defendant 1’s resale; (e) on the basis of the attached list 1, 600 (1), 2, and 97 (2) before the issuance of the tax invoice; and (e) on the basis of Defendant 1’s issuance of the above tax invoice 1, 50 or 97 (3).

② Defendant 1 was served with a notice of tax payment issued by the Gangnam Tax Office to pay KRW 3,846,922 of global income tax for occasional minutes in 1978, the payment period of November 22, 1979 at the real estate office above (trade name omitted) on November 7, 1979. Defendant 1 did not receive a notice of tax payment from the Gangnam Tax Office to pay KRW 3,846,92 of global income tax for three occasions as shown in attached table (5) of attached table by November 16, 1979, including global income tax, value-added tax, etc., KRW 36,219,197, and KRW 36,197 of global income tax, value-added tax, etc., and KRW 2,172,495,347 of global income tax for nine times from June 16, 198 to July 21 of the same year without any justifiable reasons and did not pay it within each payment period of 193 years and 1970.

2. On September 8, 1978, Defendant 1 made a commercial name similar to the (trade name omitted) construction work and made a commercial name (trade name omitted) to cover the fact that the lessee is able to hold office in the above store with a pressing attached to his authority after the measure of August 8, 1978, which was constructed by Nonindicted 11 Company and leased at Nonindicted 12 Company’s affiliated company (hereinafter omitted). Defendant 1 had the applicant directly take charge of the above business by having the above 10 company run the shopping mall lease advertisement with the phone number attached to the (trade name omitted), and had the applicant directly take charge of the above business without the above 13 company’s own or employees, and the above 10 company run the above 10 company’s shopping mall lease advertisement with the bulletin board printed as 12 Company and the information center (trade name omitted) corporation’s affiliated company’s affiliated company, and then let the applicant directly take charge of the above 13 company’s business without the above 10 company’s mutual name.

① On February 24, 1979, the victim non-indicted 14, who found newspaper advertisements at the office of the shopping center (trade name omitted) located on the first floor of the above shopping center, was found to have been falsified that the (trade name omitted) corporation directly leases the shopping center to the non-indicted 11 company, and thus, the company's branch was not attached to the press room. The victim who believed the horse to be true was 13,00,000 shopping center 116, 13.41, 13.41, 97, 200 (the total rent of KRW 26,682,000,000) received the deposit from the non-indicted 14, and 30,000 from the non-indicted 112 company until the expiration of the contract deposit, and the contract deposit and the down payment of KRW 13,000,000,0000 from the non-indicted 30,000,000 won were collected within 16,285,28.

② On March 20, 1979, the victim non-indicted 16, who found the newspaper advertisement at the above (name omitted) office of 1979.3. The victim non-indicted 2,388,000 won from the above (name omitted) office of 19.3 billion won of the above 19.3 billion won of the above 275 shopping center 11.8 billion won of the above 27.3 billion won of the above 19.3 billion won of the above 19.3 billion won of the above 19.3 billion won of the above 19.3 billion won of the above 20.3 billion won of the above 19.3 billion won of the above 20.3 billion won of the sales proceeds of the shopping center and the sales proceeds of the non-indicted 2,388,000 won of the above 19.3 billion won of the above 19.3 billion won of the sales proceeds of the above 19.3 billion won of the above 20.

Since the evidence relationship presented by a member is the same as the evidence submission column of each judgment of the court below, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

Article 8 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes before the revision of December 18, 1980, Article 9 (1) of the Punishment of Tax Evaders Act, Article 30 of the Criminal Act, Article 10 of the so-called Punishment of Tax Evaders Act, Article 2 of the above Act, Article 347 (1) of the above Act, Article 30 of the above Act, Article 10 of the so-called Punishment of Tax Evaders Act, Article 10 of the above Act, Article 347 (1) of the above Act, Article 1 of the above Act, Article 6 of the above Act shall apply to the defendants' punishment for each of the above crimes under Article 1 (1) and Article 8 of the Criminal Act, and Article 10 of the above Act, Article 6 of the above Act, the punishment of imprisonment with prison labor for each of the above crimes under Article 6 of the above Act, and Article 8 (2) of the above Act, which shall be applied to the defendant's imprisonment with prison labor for six years after the above punishment of the above defendants.

First, according to the reasoning of the judgment below, since the above provision on the remaining facts of violation of the Act on the Punishment of Tax Evaders No. 1 and the Act on the Punishment of Tax Evaders No. 1 were not included in the list No. 3, and the above provision on the remaining facts of violation of the Act on the Punishment of Tax Evaders No. 1 and the Act on the Punishment of Tax Evaders No. 1 were not included in the list No. 3, but the above provision on the remaining facts of violation of the Act on the Punishment of Tax Evaders No. 1 and the Act on the Punishment of Tax Evaders No. 3 were not included in the list No. 4, and the above provision on the remaining facts of violation of the Act on the Punishment of Tax Evaders No. 1 and the Act on the Punishment of Tax Evaders No. 1 were not included in the list No. 3, but the above provision on the remaining facts of violation of the Act on the Punishment of Tax Evaders No. 1 and the Act on the Punishment of Tax Evaders No. 3 were not included in the list No. 1 and thus, the above provision on the above facts charged No. 10 were contained. 4.

It is so decided as per Disposition for the same reasons above.

Judge final (Presiding Judge) Kim Jong-dae et al.