In Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the purport of separate provisions for aggravated punishment under Article 10(3) of the former Punishment of Tax Evaders Act for the purpose of profit-making / Whether the tax invoice under the Value-Added Tax Act is taxable data for value-added tax on all the business operators who issue the tax invoice and those who are issued the tax invoice (affirmative)

According to Article 10(3)1 of the former Punishment of Tax Evaders Act (amended by Act No. 16108, Dec. 31, 2018; hereinafter the same), a person who issues or is issued a tax invoice under the Value-Added Tax Act without being supplied with or being supplied with goods or services shall be punished by imprisonment for not more than three years, or by a fine not exceeding three times the amount calculated by applying the value-added tax rate to the value of supply indicated in the relevant tax invoice. However, Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Specific Crimes Aggravated Punishment Act”) provides that a person who commits a crime under Article 10(3) of the former Punishment of Tax Evaders Act for profit-making purposes shall be punished by imprisonment for a limited term of not less than three years where the sum of supply values, etc. stated in the tax invoice is at least three billion won, and where the sum is at least three billion won, but less than five billion won, the aggregate amount shall be imposed by applying the value-added tax rate to the specific crimes, and the grounds for imposition of penalties.

On the other hand, the Value-Added Tax Act stipulates a taxpayer of value-added tax as a "business operator", requires a business operator to register his/her business at each place of business, and adopts the so-called "pre-stage tax credit" (Articles 3, 8(1), and 37), and the tax invoice is a value-added tax assessment data for both the issuing business operator and the issuing business operator.

In full view of the contents of the provisions of the Value-Added Tax Act, the language and legislative purport of Article 8-2 of the Specific Crimes Aggravated Punishment Act, and the punishment of all the persons who have issued a tax invoice under Article 10(3)1 of the former Punishment of Tax Evaders Act, where the Defendant issues a false tax invoice as an entrepreneur who supplies goods or services, and where the said false tax invoice is issued without actually being supplied with goods or services, in cases where other separate entrepreneurs are issued the said false tax invoice without being actually supplied with the goods or services, it is reasonable to add up the value of supply and the value of supply as an entrepreneur who is issued by the business proprietor when calculating the sum of the value of supply, etc.

Article 10(3)1 of the former Punishment of Tax Evaders Act (Amended by Act No. 16108, Dec. 31, 2018); Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Articles 3, 8(1), and 37 of the Value-Added Tax Act

Defendant

Defendant and Prosecutor

Law Firm Jungwon, Attorneys Yoon Jong-soo et al.

Daegu High Court Decision 2019No277 decided August 21, 2019

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

1. The defendant's appeal shall be considered;

The defendant did not submit the appellate brief within the submission period, and the appellate brief does not contain any grounds for appeal in the petition of appeal.

2. Prosecutor's grounds of appeal are examined.

A. According to Article 10(3)1 of the former Punishment of Tax Evaders Act (amended by Act No. 16108, Dec. 31, 2018; hereinafter the same), a person who issues or is issued a tax invoice under the Value-Added Tax Act without being supplied goods or services shall be punished by imprisonment for not more than three years or by a fine not exceeding three times the amount calculated by applying the value-added tax rate to the value of supply stated in the said tax invoice. However, Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) provides that a person who commits a crime under Article 10(3) of the former Punishment of Tax Evaders Act for profit-making purposes shall be punished by imprisonment for a limited term of not less than three years where the sum of supply values entered in the tax invoice is at least five billion won, and a person who commits a crime shall be punished by imprisonment for a limited term of not less than one year where the sum of supply values entered in the tax invoice is at least three billion won but less than five billion won, and the grounds for fair imposition of value-added tax.

On the other hand, the Value-Added Tax Act stipulates a taxpayer of value-added tax as a "business operator", requires a business operator to register his/her business at each place of business, and adopts the so-called "pre-stage tax credit" (Articles 3, 8(1), and 37), and the tax invoice is a value-added tax assessment data for all the business operators who issue it and those who are issued it.

In full view of the contents of the provisions of the Value-Added Tax Act, the language and legislative purport of Article 8-2 of the Specific Crimes Aggravated Punishment Act, and the punishment of all the persons who have issued a tax invoice under Article 10(3)1 of the former Punishment of Tax Evaders Act, where the Defendant issues a false tax invoice as an entrepreneur who supplies goods or services, and where the said false tax invoice is issued without actually being supplied with goods or services, in cases where other separate entrepreneurs are issued the said false tax invoice without being actually supplied with the goods or services, it is reasonable to add up the value of supply and the value of supply as an entrepreneur who is issued by the business proprietor when calculating the sum of the value of supply under each subparagraph of Article

B. For reasons indicated in its holding, the lower court determined as follows: (a) the Defendant: (b) around January 31, 2017, included in the violation of the Specific Crimes Aggravated Punishment Act (Delivery, etc. of False Tax Invoice); (c) the portion of the supply price of KRW 135,100,00 from Nonindicted Incorporated Company 2’s office around January 31, 2017, which was issued one falsified Tax Invoice of KRW 135,100,00 from Nonindicted Incorporated Company 1’s office; and (d) from that time until December 31, 2017, found the Defendant guilty of the portion corresponding to the total supply price of the specific crime Nos. 10,12,13,15,19,19, and the portion of the supply price of KRW 3,8 through 10,14,19, and the portion of the supply price of KRW 5,00,000, which was actually issued and operated by the Defendant without any specific crime No. 265,”

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court erred by misapprehending the legal doctrine on the interpretation or calculation of “total amount of supply value, etc.” as provided in Article 8-2(1) and (2) of the Specific Crimes Aggravated Punishment Act, thereby adversely affecting the conclusion of the judgment. The prosecutor’s ground of appeal assigning

3. Scope of reversal

Of the judgment below, the part of acquittal on the grounds of violation of the Specific Crimes Aggravated Punishment Act (issuance of false tax invoices) should be reversed. However, the part on the reversal is in a relationship between the violation of the Specific Crimes Aggravated Punishment Act (issuance of false tax invoices, etc.) and the violation of the Specific Crimes Aggravated Punishment Act (issuance of false tax invoices), and the part on which the conviction was found was pronounced on the grounds that one punishment was imposed on the violation of the Punishment of Tax Offenses Act and the concurrent crime under the former part

4. Conclusion

Therefore, 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 Noh Jeong-hee (Presiding Justice)