In cases where a business operator’s registration number and name or title under Article 20(1) of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) with respect to the electronic tax invoices for which the Commissioner of the National Tax Service is exempted from the obligation to submit a list of total tax invoices by seller by transmitting the details of tax invoices to the Commissioner of the National Tax Service, and enters the number of purchase places, total purchase, total supply values, total tax amount, and total tax amount in the form of a list of total tax invoices by sale and by purchaser as the total amount of total tax invoices by sale and by purchaser, whether a crime of violating the Punishment of Tax Evaders Act due to a false entry

Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) 1 and 3 of the Punishment of Tax Evaders Act, Article 16 (2) (see current Article 32 (2)), (3) (see current Article 32 (3)), (4) (see current Article 32 (5)), Article 20 (1) (see current Article 54 (1) and (2)), Article 32 (2), (3), and (6) of the Punishment of Tax Evaders Act, Article 97 (2) of the Enforcement Decree of the Value-Added Tax Act, Article 16 (2) (see current Article 32 (2)), Article 32 (3) of the former Value-Added Tax Act (Amended by Act No. 915, Jan. 1, 2010), and Article 20 (3) (see current Article 32 (3)), Article 32 (1), (3), and (4) (attached Form 7 (3) 4) [Attachment Form 9] (3) (1), Article 7 (3) of the former Enforcement Rule of the Value-Added Tax Act]

Supreme Court Decision 2017Do12650 Decided December 28, 2017

Defendant

Defendant

Law Firm Han-gu et al.

Seoul High Court Decision 2017No1443 decided October 26, 2017

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

The grounds of appeal are examined.

1. Article 54(1) of the Value-Added Tax Act provides that where an entrepreneur issues or receives tax invoices or import tax invoices, he/she shall submit a list of total tax invoices by customer and a list of total tax invoices by customer (hereinafter “lists of total tax invoices by customer”) with the registration number of the entrepreneur and the entrepreneur being supplied with the tax invoices, the period of transaction, the date of preparation, the total sum of supply prices during the transaction period, and the amount of taxes as prescribed by the Presidential Decree, together at the time of the relevant preliminary return or final return. However, where an electronic tax invoice is issued or issued under paragraph (2) and the details of the issuance of the electronic tax invoices are transmitted to the Commissioner of the National Tax Service by the 11th day of the month following the last day of the taxable period (the preliminary return period in cases of the goods or services), the obligation to submit the list of total tax invoices by customer and individual purchaser shall be exempted. In addition, as delegated by Article 54(6) of the Value-Added Tax Act and Article 97(2) of the Enforcement Decree of the Value-Added Tax Act, the total tax amount by customer and supplier’s.

Meanwhile, the electronic tax invoice system was introduced from the Value-Added Tax Act amended by Act No. 9268, Dec. 26, 2008 in order to reduce tax cooperation costs incurred by business operators excessively in connection with the secondary tax invoice and administrative expenses incurred by tax authorities and enhance transparency in trade among business operators (Article 16(2), (3), and (4)). When the details of issuance of the tax invoice have been transmitted to the Commissioner of the National Tax Service from the date of introduction, the obligation to submit the aggregate tax invoice by seller was exempted (proviso of Article 20(1)), and on March 31, 2010, Article 21(3) and (4) of the Enforcement Rule of the Value-Added Tax Act amended by Ordinance of the Ministry of Strategy and Finance as stipulated in Article 140 of the Value-Added Tax Act with respect to the relevant electronic tax invoice issued in the form of the aggregate tax invoice issued by seller, the number of purchase price, total purchase price, total tax amount, and total tax amount were included in the total tax invoice (purchase).

In full view of the aforementioned provisions, the language and text structure of the Value-Added Tax Act, the developments leading up to, and legislative intent of, the amendment of the Value-Added Tax Act regarding electronic tax invoices, which are exempted from the obligation to submit a list of the total tax invoices by seller and seller by transmitting the details of issuance of the tax invoices to the Commissioner of the National Tax Service, may not be established as a crime of violating the Punishment of Tax Evaders Act or the Act on Aggravated Punishment, etc. of Specific Crimes (hereinafter “Specific Crimes Aggravated Punishment Act”) with respect to the portion of the electronic tax invoices for which the obligation to submit a list of the total tax invoices by seller is exempted by transmitting the details of issuance of the tax invoices to the Commissioner of the National Tax Service, without individually specifying the registration numbers and names or titles of the business operators under Article 20(1) of the former Value-Added Tax Act, as amended by Act No. 9915, Jan. 1, 2010.

2. According to the reasoning of the judgment below and the record, among the facts charged in this case, the portion of false tax invoices in the list of total tax invoices by customer as set forth in 1, 3, and 4 of Table 2 of Crimes List of the judgment below among the facts charged in this case is exempted from the duty to submit a list of total tax invoices by customer by transmitting the list to the Commissioner of

3. We examine the above facts in accordance with the legal principles as seen earlier.

Of the facts charged in this case, the part on the aggregate of the aggregate of the aggregate of the tax invoices by customer under the Value-Added Tax Act cannot be deemed to have been submitted by stating in falsity the false list of the aggregate of the tax invoices by customer under the attached Table 2 Nos. 1, 3, and 4 of the judgment of the court below among the facts charged in this case. Thus, if the sum of the amount issued by false tax invoices is excluded from KRW 3,762,982,690, which the court below acknowledged as having stated as false, it is apparent that the sum of the remainder does not exceed five billion won under Article 8-2 (1) 1 of the Specific Crimes Aggravated Punishment Act, and thus, the Defendant’s act cannot be punished for

Nevertheless, for the reasons indicated in its holding, the lower court erred by misapprehending the legal doctrine on the meaning of “the act of submitting a false list of tax invoices by sale and by purchaser,” which is the requirement for application of Article 10(3)3 of the Punishment of Tax Evaders Act and Article 8-2(1) of the Specific Crimes Aggravated Punishment Act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Min You-sook (Presiding Justice)