[1] The case holding that a crime of fraud is established even if a petroleum refiner does not incur any real property damage, in case where the gas station operator had acquired petroleum products equivalent to value-added tax, etc. by deceiving the petroleum refiner with a certificate of tax-free petroleum supplied unjustly to farmers as if the operator supplied tax-free petroleum

[2] Whether a crime of tax evasion under Article 9(1) of the Punishment of Tax Evaders Act may be established in a case where sales are intentionally omitted at the time of filing a final return of value-added tax without issuing a tax invoice to the opposite contractual party with the intent to evade value-added tax

[3] The case holding that the former act and the latter act constitute a separate crime of tax evasion in case where the petroleum agent's deceptions the petroleum refiner to whom the value-added tax was unjustly refunded and the supplied petroleum product was sold to a third party and did not issue a tax invoice and did not report the sales amount thereof

[1] The case holding that a crime of fraud is established even if a petroleum refiner does not incur any real property damage, in case where the gas station operator had acquired petroleum products equivalent to value-added tax, etc. by deceiving the petroleum refiner with a certificate of tax-free petroleum supplied unjustly to farmers as if the operator supplied tax-free petroleum

[2] If an entrepreneur supplied petroleum by a petroleum refiner and supplied it to a gas station again fails to issue a tax invoice with the intent to evade value-added tax to a third party while supplying the petroleum supplied by a petroleum refiner to a third party, and intentionally omits its sales in the final return of value-added tax, then this constitutes a crime of tax evasion under Article 9(1) of the Punishment of Tax Evaders Act, since it makes it impossible or considerably difficult to impose and collect value-added tax by fraud or other unlawful act.

[3] The case holding that the former act and the latter act constitute a separate crime of tax evasion in case where the petroleum agent's deceptions the petroleum refiner into a third party and did not issue a tax invoice and did not report sales of the petroleum products supplied to the third party, as if the petroleum agent supplied tax-free oil to the farmer

[1] Article 347 (1) of the Criminal Code / [2] Article 9 (1) of the Punishment of Tax Evaders Act / [3] Article 9 (1) of the Punishment of Tax Evaders Act

[2] Supreme Court Decision 99Do5191 delivered on February 8, 2000 (Gong2000Sang, 651)

Defendant

Prosecutor and Defendant

Attorney Cho Jae-won

Changwon District Court Decision 2006No594 decided September 6, 2006

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

A. As to fraud

The crime of fraud is established by deceiving another person and acquiring property or pecuniary benefits from the defective intent. The essence of fraud does not require that the acquisition of property or pecuniary benefits from deception and the actual occurrence of property damage to the other party (see, e.g., Supreme Court Decisions 87Do2168, Dec. 22, 1987; 2008Do7303, Nov. 27, 2008). According to the evidence adopted by the court of first instance as cited by the court below, the defendant, while operating a gas station, supplied petroleum at the above gas station at a exempted price, although the defendant was not aware of the fact that he supplied the above gas at the exempted price to the farmers by unfairly obtaining a certificate of tax-free petroleum supply from the agricultural cooperative, and instead, by deceiving the above gas station to supply the petroleum product to the farmers by using the gas station, and thus, it is not established that the defendant was actually subject to modern property bank's fraud.

In addition, the amount of fraud, which is the taking-off of property, is a property given from the victim, unless there are special circumstances. Therefore, as the defendant supplied petroleum to a farmer at the exempted price, the expenses were required to purchase the tax-free purchase slip from the co-defendant in order to induce the modern Lao Bank as if he supplied the petroleum to the farmer, and even if some of the profits from the petroleum that the defendant acquired by the defendant were listed in the court below for the payment of the above expenses, such amount should not be deducted in calculating

The judgment of the court below to the same purport is just, and there is no violation of the rules of evidence or misapprehension of legal principles as claimed in the grounds of appeal

B. As to the crime of delivery of third party acceptance and the crime of offering of bribe

In full view of the evidence adopted by the court of first instance, the court below found the defendant guilty of each crime in the judgment of the court of first instance. Such judgment of the court below is just and acceptable, and there is no violation of the rules of evidence or misapprehension of the legal principle as alleged in the grounds of appeal.

2. Judgment on the grounds of appeal by the prosecutor

The crime of tax evasion provided for in Article 9 (1) of the Punishment of Tax Evaders Act is established by making it impossible or considerably difficult to impose and collect taxes by fraudulent or other unlawful means, as the protected legal interest of the State is the securing of national tax revenues through appropriate imposition and collection of taxes (see Supreme Court en banc Decision 2005Do9546, Feb. 15, 2007). If a business operator supplied petroleum from a petroleum refining business operator to a gas station again supplies part of petroleum products supplied by a petroleum refining business operator to a third party without issuing a tax invoice with the intent to evade value-added tax, and intentionally omits the sales in the return while filing a final return of value-added tax, it may be deemed that the imposition and collection of value-added tax was impossible or considerably difficult by fraud or other unlawful acts (see, e.g., Supreme Court Decision 9Do5191, Feb. 8, 200).

In this case, in a case where an agency supplied petroleum to a farmer at a price exempted from value-added tax or traffic tax pursuant to Article 106-2 of the Restriction of Special Taxation Act through a gas station and received a return of value-added tax (value-added tax) from a petroleum refiner with only external appearance as if the agency supplied the petroleum from the petroleum refiner, and then supplied the petroleum to a third party without issuing a tax invoice as above, the act of evading value-added tax by unfairly receiving value-added tax from the petroleum refiner and supplying the petroleum without issuing a tax invoice to the third party and then failing to report the sale of the petroleum is the act of evading value-added tax because the former is caused by the act of avoiding the burden of the value-added tax, and the latter is different from that of evading value-added tax, and the latter is exempt from the burden of the purchase value-added tax equivalent to the value-added tax supplied by the petroleum refiner. Accordingly, if the petroleum refiner supplied the petroleum products to a third party without issuing a tax invoice for the taxable period and the value-added tax imposed on the third party after the unfair return of the purchase amount, the latter can be excluded from the tax.

According to the facts established by the court below, the defendant was issued a certificate of tax-free petroleum supply on the tax-free oil purchase slip purchased from a farmer with the confirmation of the co-defendant in the court below, and submitted it to Hyundai Mil Bank to return the tax imposed on the duty-free oil flow, and then supplied petroleum to the non-indicted who actually kept in custody as if it was supplied to the non-indicted. In light of the above legal principles, if the defendant did not issue a tax invoice with the intent to evade the value-added tax while supplying petroleum to the non-indicted and omitted the sales in the return at the time of filing the final return of value-added tax, it is reasonable to view that it constitutes a crime of tax evasion under Article 9 (1) of the Punishment of Tax Evaders Act, since it was impossible or considerably difficult to impose and collect the value-added tax by fraud or other unlawful act, and even if the defendant received the above petroleum products from Hyundai Mil Bank with the duty-free petroleum supplied to the non-indicted purchaser as if it was supplied to the non-indicted, it should not be viewed that the value-added tax was refunded by the defendant.

Nevertheless, the court below affirmed the judgment of the court of first instance which acquitted the defendant on the charges of violating the Punishment of Tax Evaders Act by concluding that the petroleum products in possession of the defendant did not cause any separate evasion of value-added tax even if they were sold to the non-party without a tax invoice to the non-indicted, since it is established that the defendant received a refund of the value-added tax collected by means of fraud or other illegal means when he purchased petroleum products from Hyundai Mil Bank. This part of the judgment of the court below is erroneous in the misapprehension of the legal principles as to the crime of evading tax under Article 9 (1) of the Punishment of Tax Evaders Act, and it has affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below which acquitted the defendant is not exempted from reversal, and the appeal on the guilty part of the defendant is without merit. However, since each crime which the court below found the defendant guilty and not guilty is concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below which found the defendant guilty should be reversed together with the

Therefore, all of the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)