2016Gohap1237 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax)

A

Prosecution proceedings (prosecutions) and Kim Jong-mick (trials)

Attorney B

July 6, 2017

Defendant shall be punished by imprisonment for a term of one year and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

The sentence of a fine against the accused shall be suspended.

Criminal facts

Around 2002, the Defendant purchased and held three lots of land C, D, and E from the Korea Land Corporation. On January 16, 2008, the Defendant concluded a real estate sales contract stating that “the Defendant sells the said real estate to G for KRW 3 billion, a down payment of KRW 10 million, and KRW 2.90 million in the remainder,” between G and G in the coffee shop near Gangnam-gu Seoul, Gangnam-gu, Seoul. However, the Defendant sought from G that the capital gains tax would reach more than KRW 90 million, and attempted to receive a false sales contract to evade capital gains tax by preparing a false sales contract.

On July 18, 2008, the Defendant reported the transfer income tax pursuant to the above sales contract to the Gangnam Tax Office, and submitted a false contract stating the purchase price of 2.1 billion won as of April 11, 2008, the down payment of 10 million won, and the balance of 2.9 million won. The Defendant submitted the aforementioned false contract to the tax office, thereby evading the transfer income tax of 585,821,714 won.

Summary of Evidence

1. Defendant's legal statement;

1. Written accusation prepared by the director of the Gangnam Tax Office;

1. A copy of each real estate sales contract, a copy of each letter of commitment, a copy of each letter of decision (209 Gohap 12776), a copy of each report on tax evasion;

1. Each investigation report (Attachment to a report on confirmation of partial acceptance of an objection filed against the imposition of capital gains tax by a suspect, attachment of a notice of changed details of tax offense, hearing of a suspect and submission of additional data, attachment of a criminal suspect's statement, attachment of a criminal suspect's decision, attachment of a written decision submitted by a

Application of Statutes

1. Article applicable to criminal facts;

Article 8(1)2 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9919, Jan. 1, 2010); Article 9(1) of the former Punishment of Tax Evaders Act (Amended by Act No. 9346, Jan. 30, 2009);

1. Discretionary mitigation;

Articles 53, 55(1)3 and 55(1)6 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing):

1. Suspension of execution;

Article 62(1) and (2) of the Criminal Act (with respect to imprisonment, consideration of favorable circumstances among the reasons for sentencing as follows):

1. Suspension of sentence;

Article 59(1) and (2) of the Criminal Act (the defendant shall be punished by a fine of KRW 600 million, and the defendant shall be confined to a prison room for the period calculated by converting the amount of KRW 1.2 million into one day when the defendant fails to pay the above fine pursuant to Articles 70(1) and (2) and 69(2) of the Criminal Act; however, the sentence of a fine to the defendant shall be postponed by taking into account the favorable circumstances of the reasons for sentencing

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for not less than one year and six months, but not more than seven years and six months, and fines not less than 585,821,714, but not more than 1,464,54,285 won;

2. Scope of recommended sentences according to the application of the sentencing criteria: Imprisonment with prison labor for not less than one year and six months but not more than two years and six months;

【Scope of Recommendation】

Type 1 (not less than KRW 50 million, less than KRW 1 billion) (one year and six months to two years) shall be reduced area (one year and six months) under the Specific Crimes Aggravated Punishment Act.

[Special Mitigation]

Where substantial part of evaded tax has been paid;

3. Determination of sentence: The purpose of tax law is to enhance the effectiveness of tax law and to realize strict tax justice by establishing a citizens’ sound awareness of tax payment, where the Act on the Punishment of Tax Evaders and the Aggravated Punishment, etc. of Specific Crimes provides that a person who has been sentenced to a stay of execution three years, a fine of 600 million won, shall be punished for the crime of tax evasion;

The defendant's double contract is not easy in terms of the nature of crime in that he evades capital gains tax by preparing double contract, and the fact that the evaded tax amount reaches approximately KRW 580 million is disadvantageous to the defendant.

However, G, the buyer of the instant real estate, sells real estate in full, and prepares a contract by lowering the purchase price, and the Defendant appears to have caused the instant crime, and from the beginning, it does not seem that the Defendant actively prepared a false contract for the purpose of evading taxes; the Defendant paid the total amount of taxes and additional charges evaded by the Defendant; and the Defendant was the first offender without any previous conviction in favor of the Defendant.

In the above circumstances, the sentencing factors such as the defendant's age, character and conduct, motive and consequence of the crime, and circumstances after the crime are comprehensively considered, shall be determined as per Disposition.

The presiding judge, the highest judge;

Judges of the High Instance

Judges Kim Dong-dong