2015Do8490 Violation of Certified Tax Accountant Act

Defendant

Defendant

Law Firm Ghana

Attorney Lee Gyeong-hwan et al.

Seoul Western District Court Decision 2015No129 Decided May 22, 2015

May 28, 2020

The appeal shall be dismissed.

The grounds for appeal are determined.

1. As to the grounds of appeal Nos. 1 and 2

A. Article 22(1)1 of the Certified Tax Accountant Act (hereinafter “instant penal provision”) provides that a person who is not qualified as a certified tax accountant shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 30 million won if he/she provides 'tax agent'. Such 'tax agent' refers to an act or business entrusted by a taxpayer, etc., and such 'tax agent' includes an agent in filing a return, application, claim, etc. on taxes (Article 2 subparag. 1 of the Certified Tax Accountant Act). The legislative purport of these provisions is to strictly limit the scope of a person who is qualified as a tax agent, such as a certified tax accountant, to establish a sound tax order, protect the legitimate rights and interests of taxpayers, and to ensure the appropriateness and fairness of tax agent's act (see Supreme Court Decision 2013Da35788, Apr. 9, 2015).

In light of the language and structure of the instant penal provision, and the purport that the Certified Tax Accountant Act strictly limits the eligibility for tax agent service, etc., it is reasonable to deem that a person who is not qualified as a certified tax accountant acts on behalf of a taxpayer without any direction and supervision of a person qualified as a certified tax accountant, or makes a necessary report, etc. using tax knowledge on behalf of a taxpayer or in fact leading a taxpayer only in the external form, even though he/she does not take the form of acting as a proxy, it is reasonable to deem that he/she would be punished pursuant to the instant penal provision, barring special circumstances, such as where a person was in the name of a lent certified tax accountant, by collecting the taxation data under the name of a taxpayer, preparing a report through a tax accounting program, and filing a report in the name of a lent certified tax accountant, even though he/she is not qualified for tax agent service by an organization to which he/she belongs, and barring special circumstances, such as the direction and supervision of the certified tax accountant.

B. Review of the reasoning of the original judgment and the evidence duly admitted reveals the following facts.

(1) As the branch head of the non-indicted 00 branch head of the non-indicted 1’s association (hereinafter “the branch head of the non-indicted 2”) decided whether to enter into an advisory agreement with the tax accountants who leased the establishment of the tax accounting program necessary for the return of value-added tax (hereinafter “the program”). The branch employees of the instant branch head of the association prepared a value-added tax return of members wishing to use the instant program, and then allowed them to exchange and transmit the value-added tax return of members to the home office, which is the national tax information and communications network under the name of the leased tax accountants, for the purpose of 1,00 members of the tax office, and thus, the non-indicted 3 branch head of the non-indicted 2’s non-indicted 2’s non-indicted 3 branch head of the non-indicted 4 branch head of the association. The court below rejected the defendant’s non-indicted 2’s non-indicted 1’s report of value-added tax evasion and supervision of the employee’s duty to notify the employees of the tax office.

Examining the reasoning of the judgment of the original court in light of relevant legal principles and evidence duly admitted, the above judgment of the original court is justifiable, and there is no error in the misapprehension of legal doctrine as to acts of political party as provided by Article 20 of the Criminal Act, mistake of law as provided by Article 16 of the Criminal Act.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hwan

Justices Park Sang-ok

Lee In-bok and Lee In-chul

Justices Noh Jeong-hee