Underreporting and tax evasion

Even though the defendant filed a final return of value-added tax, if no active act is involved in the return, it cannot be said that there is an unlawful act under Article 9 of the Punishment of Tax Evaders Act.

Article 9 of the Punishment of Tax Evaders Act

Supreme Court Decision 70Do1629 Delivered on November 24, 1970

Supreme Court Decision 76Do4078 Decided May 10, 1977

Supreme Court Decision 77Do1673 delivered on September 12, 1978

Supreme Court Decision 78Do2784 delivered on December 13, 1978

Supreme Court Decision 81Do154 delivered on July 14, 1981

Supreme Court Decision 81Do532 delivered on July 28, 1981

Supreme Court Decision 81Do337 delivered on December 22, 1981

Supreme Court Decision 81Do2542 delivered on January 12, 1982

Supreme Court Decision 80Do1474 Delivered on January 19, 1982

Defendant

Attorney Park Jong-gu (Korean, No. S.) Sick (Korean)

Daegu High Court Decision 80No816 delivered on November 27, 1980

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

The grounds of appeal are examined.

1. The term “Fraud and other unlawful acts” under Article 9(1) of the Punishment of Tax Evaders Act refers to deceptive schemes or other active acts that make it impossible or considerably difficult to impose and collect taxes, and without accompanying any other acts, simply failing to report under tax law or making a false report or notification under tax law does not constitute unlawful acts (see Supreme Court Decision 81Do154 delivered on July 14, 1981 and each Decision 81Do532 delivered on July 28, 198).

However, according to the statement of criminal facts in the first instance judgment cited by the lower court, the Defendant evaded value-added tax of KRW 9,116,161 by underreporting income in filing the final return of value-added tax for the period from January 1, 1979 to December 29 of the same year. The lower court determined that Article 9(1)1 of the Punishment of Tax Evaders Act applies to this case.

According to the statement of the above facts of crime, even though it is known that there was underreporting the income amount, it is not known that there was an active act in this context, and there is no trace of the deliberation on this issue by the record, so there is an error of law by misunderstanding the legal principles on the illegal acts under Article 9 of the Punishment of Tax Evaders Act and failing to exhaust all necessary deliberations.

2. Article 8 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes is amended by Act No. 3280 of Dec. 18, 1980, and Article 8 (1) 2 of the same Act is amended to "a person shall be punished by imprisonment with prison labor for life or for not less than 5 million won in a year when the evaded tax amount, etc. is more than 5 million won and less than 10 million won in a year," and the provision "a person shall be punished by imprisonment with prison labor for life or for not less than 3 years" was amended to "a person shall be punished by imprisonment with prison labor for not less than 20 million won in a year, but less than 5 million won in a year," so the court below cannot be punished by the Act on the Aggravated Punishment,

Therefore, without examining the judgment on other points, the judgment of the court below, which was applied to concurrent crimes with other crimes, shall be reversed and remanded entirely. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeon Soo-hee (Presiding Justice)