(영문) 서울중앙지방법원 2018.1.4. 선고 2017고합1107 판결

Defendant A shall be punished by imprisonment with prison labor for eight months, and by a fine of one hundred million won: Provided, That with respect to Defendant A, the execution of the above punishment shall be postponed for two years from the date this judgment becomes final and conclusive. The order for the provisional payment of a reasonable amount of the above fine against Defendant B. The order for each violation of the Punishment of Tax Evaders Act due to the act of submitting to the Government the list of total tax invoices by seller among the facts charged against Defendant B, by entering the false list of total tax invoices by seller, among the facts charged against the Defendant B, shall be announced publicly.

Reasons

Criminal History Office

【Criminal Power】

On September 20, 2017, Defendant A was sentenced to one year of suspension of the execution of imprisonment with prison labor for violating the Labor Standards Act at the Seoul Central District Court on April 201, and the judgment became final and conclusive on September 28, 2017.

[Criminal Facts] Defendant B is a corporation whose purpose is indoor interior interior interior interior construction business, and Defendant A is the representative director of Defendant B, who exercises overall control over the above company’s business, such as fund management.

No account statement under the Value-Added Tax Act shall be issued or issued without supplying or being supplied with goods or services.

1. Defendant A

(a) Receipt of false tax invoices;

On October 10, 2014, the Defendant received a false tax invoice stating that the supply price of goods or services equivalent to KRW 109,090,909 was received, even though the Defendant did not receive any goods or services for profit-making purposes at E offices located in Sungsung City Co., Ltd. D.

In addition, the Defendant issued a tax invoice and revised tax invoice equivalent to KRW 1,389,690,90,909 in total nine times as shown in attached Table 1, without trading goods or services for profit-making purposes between the aforementioned date and May 15, 2015.

(b) Issuance of false tax invoices;

On July 7, 2014, around 14, the Defendant issued a false tax invoice stating that the Defendant supplied goods or services equivalent to KRW 97,237,700 to G, even though there was no fact that the Defendant supplied goods or services to G for profit at the office B located in Seocho-gu Seoul Metropolitan Government.

In addition, from the above date to May 1, 2015, the Defendant issued a tax invoice of the total amount of KRW 551,146,789 on seven occasions, as shown in attached Table 2, without a trade of goods or services, for profit-making purposes.

2. Defendant B

The Defendant issued a false tax invoice equivalent to KRW 1,389,690,90,909 in total value of the Defendant’s business, as described in paragraph (1), and issued a false tax invoice equivalent to the total value of KRW 551,146,789 in total.

Summary of Evidence

1. Defendants’ partial statement

1. A copy of the tax offense record concerning H;

1. A copy of each statement of I and J;

1. A copy of electronic tax invoice;

1. A copy of the accusation report or a report on the closure of tax offense investigation;

1. Previous records of judgment: Criminal records, etc. inquiry reports, written judgments, etc., search copies of integrated cases, investigation reports (verification of recent judgments of suspects and confirmation of the fixed date);

Application of Statutes

1. Defendant A: Articles 18 and 10 (3) 1 of the Punishment of Tax Offenses Act (Optional to Imprisonment) 1 of the Punishment of Tax Evaders Act; and Articles 18 and 10 (3) 1 of the Punishment of Tax Evaders Act;

1. Handling concurrent crimes;

Defendant A: the latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (up to the concurrent crimes committed in violation of the Punishment of Tax Evaders Act due to the receipt of false tax invoices on May 15, 2015) Defendant B: The former part of Article 37 of the Criminal Act, Article 20 of the Punishment of Tax Evaders Act (up to the fines prescribed in the violation of the Punishment of Tax Evaders Act, instead of Article 38(1)2 of the Criminal Act)

1. Suspension of execution;

Defendant A: Article 62(1) of the Criminal Act (General Considerations favorable to the reasons for sentencing below)

1. Order of provisional payment;

Defendant B: Reasons for sentencing under Article 334(1) of the Criminal Procedure Act

1. Defendant A

(a) The scope of applicable sentences under law: Imprisonment for one month to four years; and

B. The sentencing guidelines are not applicable (the latter part of Article 37 of the Criminal Act). The crime of this case, which was 8 months of imprisonment and 2 years of suspended sentence, receives and issues a false tax invoice without any actual transaction or on the basis of actual transaction. This is an unfavorable circumstance against the Defendant, for example, that the Defendant disturbs the national tax collection order and seriously undermines the tax justice, as well as seriously undermines the tax justice, and that the total amount of supply price of the tax invoice received and issued by the Defendant in falsity exceeds 1.9 billion won. The Defendant recognized all facts of the crime of this case, and reflects his mistake in depth, and the Defendant committed the crime of this case in the course of financing funds through promissory notes because the company operated for 30 years of financial difficulties, which led to the crime of this case in the course of financing funds through a promissory notes, the Defendant’s crime of this case did not have the purpose of tax evasion or does not result in tax evasion, at the time of the crime of this case, the Defendant does not have any previous criminal conviction, and the crime of this case is concurrent with the latter part of the Criminal Act.

In addition, the defendant's age, occupation, character and conduct, family relationship, the circumstances and results of the crime of this case, and all of the sentencing conditions shown in the records and arguments, such as the circumstances after the crime, shall be comprehensively considered as ordered.

2. Defendant B

(a) Scope of applicable sentences under law: Fines of 50,00 won to 582,251,309 won 2);

(b) Non-application of the sentencing criteria;

It is so decided as per Disposition by comprehensively taking into account the various circumstances examined in the grounds for sentencing against Defendant A, the frequency of offenses, the circumstances and results of the instant crime, and all of the sentencing conditions shown in the records and arguments, including the circumstances after the crime.

The acquittal portion

1. Summary of this part of the facts charged

A. Defendant A

(i) Submission of a list of total tax invoices by seller;

A) 2nd 2014

Around January 23, 2015, the Defendant reported value-added tax on the distribution tax book located in Seocho-gu Seoul, Seocho-gu, Seoul, in the distribution tax book, from July 2014 to December 2014, the Defendant submitted a list of total tax invoices by seller to the said tax office, stating a false list of total tax invoices by seller as if he/she was supplied goods or services equivalent to KRW 327,272,72,727, as described in the [Attachment Table 3] 1 for profit-making purposes, although he/she was not supplied goods or services from July 2014 to December 2014.

B) 1 January 2015

Around July 26, 2015, the Defendant reported the value-added tax in the above circulation tax book, which entered the list of individual tax invoices by seller in a false manner and submitted it to the above tax office as if he was supplied goods or services equivalent to KRW 1,062,418,182 as shown in the table 2 of the crime list 3 for profit-making purposes, although the Defendant did not have received any goods or services from E from January 2015 to June 2015.

(ii)Submission of a list of total tax invoices by false seller;

A) 2nd 2014

Around January 23, 2015, the Defendant reported the value-added tax in the above list of distribution tax books, the fact that the Defendant reported the value-added tax was submitted to G, G, and K from July 2014 to December 2014, 2014 by stating a false list of the tax invoices by the seller, as shown in the No. 1 of the attached Table 4, as if he supplied goods or services equivalent to KRW 195,692,245 as if he supplied goods or services for profit-making purposes, as shown in the No. 1 of the attached Table 4.

B) 1 January 2015

Around July 26, 2015, the Defendant reported the value-added tax in the above list of distribution tax books, and even though there was no fact that the Defendant supplied goods or services to K Co., Ltd. from January 2015 to June 2015, the Defendant entered a false list of the tax invoices by the seller as if he was supplied goods or services equivalent to KRW 355,454,54, and submitted it to the said tax office by stating the false list of the tax invoices by the seller as shown in the No. 2 of the attached list 4 for profit-making purposes.

3) Accordingly, the Defendant submitted to the Government a list of total tax invoices by false seller without supplying goods or services for profit-making purposes.

(b) B

The Defendant submitted to the Government a list of total tax invoices by seller equivalent to KRW 1,389,69,690,909 with respect to the Defendant’s business, as described in the above paragraph (a), and submitted to the Government a list of total tax invoices by seller equivalent to the total amount of KRW 551,146,789.

2. Relevant principles;

The former Value-Added Tax Act, amended by Act No. 9268, Jan. 1, 2010, introduced an electronic tax invoice system for the purpose of reducing excessive tax cooperation costs and tax administration costs related to value-added tax and enhancing transparency in transactions. Accordingly, the current Value-Added Tax Act requires corporate entrepreneurs and individual entrepreneurs prescribed by Presidential Decree to issue electronic tax invoices, and shall transmit the details of issuance to the Commissioner of the National Tax Service (Article 32(2) and (3) of the former Enforcement Rule of the Value-Added Tax Act, even if the electronic tax invoice is issued or issued and the details of issuance are transmitted to the Commissioner of the National Tax Service by 11th day of the month following the end of the taxable period in which the relevant goods or services are supplied (Article 54(2) of the Value-Added Tax Act). In addition, the former Enforcement Rule of the Value-Added Tax Act requires not to submit a list of total tax invoices issued at the time of the relevant preliminary return or final return, as amended by 209.

3. Determination

A. According to the evidence duly adopted and examined by the court, the following circumstances are acknowledged.

① When Defendant A operates a stock company, each tax invoice listed in attached Table 1, which was received from October 10, 2014 to May 15, 2015, was falsely prepared an amount equivalent to KRW 1,389,69,90,909, total supply value, and the amount of KRW 1,389,69,909, which is the total supply value listed in attached Table 3, which was submitted at the final return of value-added tax for the second period of year 2014 and the first period of year 2015. The amount equivalent to KRW 1,389,690,909, which was the total supply value listed in attached Table 3, which was submitted by Defendant A to the competent tax office having jurisdiction over the final return of value-added tax. However, all purchase tax invoices listed in attached Table 3, which was submitted by Defendant A at the tax office for the final return, are related to the amount of electronic tax invoices issued, and the details issued to the Commissioner of the National Tax Service are transmitted.

② In addition, each tax invoice listed in attached Table 2, which was issued by Defendant A from July 14, 2014 to May 1, 2015, was prepared falsely in an amount equivalent to KRW 551,146,789, total of supply values, and KRW 551,146,789, as indicated in attached Table 2, which was issued by Defendant A, from July 14, 2014 to May 1, 2015. The amount of KRW 51,146,789, total supply value stated in attached Table 4, which was submitted at the final return of value-added tax for the second period of year 2014 and for the first period of year 2015, is falsely stated in the amount of KRW 51,789, total supply value entered in each sales invoice entered in the competent tax office for the final return of value-added tax, and the details issued to the Commissioner of the National Tax Service under the Value-Added Tax Act.

B. In light of the above legal principles, in the case of Defendant A, it cannot be deemed that Defendant A submitted a false list of total tax invoices by customer under the Value-Added Tax Act separately from receipt of false tax invoices for the same transaction in the case of KRW 1,940,837,69 ( = 1,389,690,90,90 + 551,146,789) in the aggregate of supply values of individual tax invoices by customer submitted by the Defendant. This part is excluded from the aggregate of supply values, etc. stated in the indictment, it is evident that the remainder does not exceed three billion won as stipulated in Article 8-2 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes. Therefore, since the evidence submitted by the prosecutor alone does not constitute a crime of violation of Article 8-2 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, it cannot be deemed that Defendant A was not guilty on the grounds that the above part of the facts charged were not included in the crime of violation of Article 25 of the Act.

Judges

The senior judge of the presiding judge;

Judges Shin Sung-sung

Judges Kim Gin-ho

Note tin

1) According to the evidence duly adopted and examined by this court, all of the tax invoices issued by Defendant A in falsity are electronic taxes.

It seems to have been issued as an invoice. Since the "Simplified tax invoice" in 4, 9 of the attached Table 1 of the indictment is a clear clerical error, it shall be separate.

all as listed in Nos. 1, 4, and 9 of the List of Offenses are amended to “electronic tax invoices.”

2) 1,940,837,698 won (total sum of supply values of each tax invoice on the market) ¡¿ 10% (value-added tax rate) ¡¿3 or less per won;