[1] The elements for recognizing the “suspect” in the crime of tax evasion under Article 9(1) of the former Punishment of Tax Evaders Act

[2] The case holding that the court below erred in the misapprehension of legal principles and incomplete deliberation in holding that there was an intentional act of tax evasion under Article 9 (1) of the former Punishment of Tax Evaders Act as to the facts charged that the value-added tax was evaded by means of deducting the input tax amount by filing a false purchase tax invoice after receiving a false purchase tax invoice as if the oil was supplied by the oil wholesaler

[3] Whether the crime of issuing and receiving the tax invoices under Article 11-2(4) of the former Punishment of Tax Evaders Act constitutes one crime for each tax invoice (affirmative)

[1] Article 9(1) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010; see current Article 3(1)); Article 13 of the Criminal Act / [2] Article 9(1) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010; see current Article 3(1)); Article 13 of the Criminal Act / [3] Article 11-2(4) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010; see current Article 10(3))

[1] Supreme Court Decision 99Do2358 decided Feb. 9, 2001 (Gong2001Sang, 676) decided Oct. 16, 1990 (Gong2006Ha, 2040), Supreme Court Decision 2006Do5147 decided Oct. 26, 2006 (Gong2006Ha, 2040) Supreme Court Decision 2007Do2076 Decided Jun. 29, 2007

Defendant

Defendant

Attorney Kim Management

Busan High Court Decision 2008No195 decided September 24, 2008

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the assertion about the evasion of value-added tax

According to the reasoning of the judgment below, the court below found the Defendant guilty on the grounds that the Defendant’s act of tax evasion under Article 9(1) of the former Punishment of Tax Evaders Act (amended by Act No. 9919, Jan. 1, 2010) constitutes a crime of tax evasion under Article 9(1) of the former Punishment of Tax Evaders Act, and the Defendant’s intentional act of tax evasion is recognized, on the grounds that: (a) the Defendant evaded the value-added tax by purchasing the falsified tax invoice, which received false tax invoices as if he was supplied with oil from the oil wholesaler; and (b) filing the value-added tax return by including the purchase amount in the purchase amount; and (c) as if he was supplied with goods

However, in the case of this case, in order for the defendant to have had the intent to commit the crime of evading tax under Article 9(1) of the former Punishment of Tax Evaders Act, the above oil wholesalers, other than the awareness that they receive the refund of the input tax under the above false tax invoices, should be aware that the defendant declared and paid the tax base and the tax amount of value-added tax excluding the output tax under the above false tax invoices, or evaded the liability to pay the input tax under the above false tax invoices by filing a return or paying the whole amount of the output tax under the above tax invoices, and thus, the defendant would have to be entitled to receive the input tax deduction under the above false tax invoices, resulting in a decrease in national tax revenues (see, e.g., Supreme Court Decision 9Do2358, Feb. 9, 201). Accordingly, the court below erred in the misapprehension of legal principles as to the tax evasion amount under the above tax evasion amount under the circumstance that the defendant had no intention to receive the above tax evasion amount under the above false tax invoices, and there is room to view that most of the tax evasion amount under the above tax evasion amount under the taxpayer's's.

2. As to the assertion about the evasion of corporate tax

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below is justified in calculating the defendant's corporate tax evasion amount according to the estimation method as stated in its holding, and there is no error of law such as misunderstanding of legal principles concerning estimate taxation, misunderstanding of facts

3. As to the assertion on the receipt of a tax invoice without trade

Article 11-2 (4) of the former Punishment of Tax Evaders Act (amended by Act No. 7321 of Dec. 31, 2004) and Article 11-2 (4) of the former Punishment of Tax Evaders Act (amended by Act No. 9919 of Jan. 1, 2010), and the crime of violation of the Punishment of Tax Evaders Act due to the issuance and receipt of tax invoices, shall be deemed to constitute one crime for each tax invoice (see, e.g., Supreme Court Decisions 2006Do5147, Oct. 26, 2006; 2007Do20766, Jun. 29, 2007). The judgment of the court below that each tax invoice constitutes a crime of violation of the Punishment of Tax Evaders Act, as argued in the Grounds for Appeal.

4. As to the assertion on the acquisition of stolen property

The court below found the defendant guilty on the charge of acquiring stolen goods by determining that the defendant's miter oil purchased from the crew of the Russia vessel constitutes stolen goods. In light of the relevant legal principles and records, the court below's above fact-finding and decision are just and acceptable, and there is no violation of the rules of evidence as alleged in the ground of appeal.

5. Scope of reversal

As seen earlier, the part of the judgment below on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the Punishment of Tax Evaders due to the evasion of value-added tax should be reversed. Since the court below recognized each of the above and the remaining criminal facts of the defendant as a blanket crime or concurrent crime under the former part of Article 37 of the Criminal Act and sentenced the defendant to a single imprisonment and fine, the judgment of the court below

6. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)