The purpose of strictly limiting the eligibility to act as a tax agent under the Certified Tax Accountant Act / meaning of “cases where a tax agent, such as a tax return, is provided without any qualification as a tax accountant” to which Article 22(1)1 of the Certified Tax Accountant Act applies / In cases where a taxpayer collects the taxation data of the taxpayer under the pretext of promoting the convenience of taxpayers although he/she is not entitled to act as a tax agent by the organization to which the taxpayer belongs, and files a return under the name of the leased certified tax accountant through the tax accounting program, whether the person involved in such act is punished pursuant to Article 22(1)1 of

Article 22(1)1 of the Certified Tax Accountant Act provides that a person who is not qualified as a certified tax accountant shall be punished by imprisonment for not more than three years, or by a fine not exceeding 30 million won, if he/she acts as a tax agent. Here, the term “tax agent” refers to an act or business under any subparagraph of Article 2 of the Certified Tax Accountant Act upon the delegation of a taxpayer, etc. by a certified tax accountant. Such term “tax agent” includes an act or business under any subparagraph of Article 2 of the Certified Tax Accountant Act (Article 2 subparag. 1 of the Certified Tax Accountant Act). The legislative intent of these provisions is to establish a sound tax order, protect the legitimate rights and interests of taxpayers, and ensure the appropriateness and fairness of the act of tax agent by strictly restricting the persons who are eligible for tax agent services, such as a certified tax

In light of the language and structure of the penal provisions, and the purport of strictly restricting the eligibility of the Certified Tax Accountant to provide tax agent services, etc., where a person without a qualification to provide tax accountant is required to use tax knowledge, such as filing a tax return on behalf of a taxpayer without the direction and supervision of a person qualified as a certified tax accountant, or filing a tax return on behalf of a taxpayer or under the actual leading of a taxpayer even though he/she does not take the form of his/her agent, as if he/she is directly engaged in the tax affairs in the external form. Therefore, where a taxpayer collects taxation data from a taxpayer under the pretext of promoting the convenience of taxpayers even though he/she is not entitled to provide tax agent services in the organization to which he/she belongs and prepares a tax accounting program, and then files a return in the name of a leased certified tax accountant through the tax accounting program, barring special circumstances, such as where

Certified Tax Accountant Act No. 2 subparag. 1, and Article 22(1)1

Supreme Court Decision 2013Da35788 Decided April 9, 2015 (Gong2015Sang, 677)

Defendant

Defendant

Law Firm Au, Attorneys Lee Gyeong-hwan et al.

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

The appeal is dismissed.

The grounds of appeal are examined.

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 ineligible as a certified tax accountant shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding KRW 30,000,000. Here, the term “tax agent” refers to a person delegated by a taxpayer, etc. to engage in acts or services under each subparagraph of Article 2 of the Certified Tax Accountant Act. Such term “tax agent agent” includes representation in filing reports, applications, requests, etc. with respect to taxes (Article 2 subparag. 1 of the Certified Tax Accountant Act). The legislative intent of these provisions is to establish a sound tax order, protect the legitimate rights and interests of taxpayers, and ensure the appropriateness and fairness of tax agent services (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 to provide tax agent services, etc., it is reasonable to deem that a “tax agent agent” means a case where a person who is not qualified as a certified tax accountant acts on behalf of a taxpayer without command and supervision of a person qualified as a certified tax accountant, or makes a report in the form of a taxpayer only as if he/she personally takes the lead of a taxpayer in lieu of a taxpayer or in fact even though he/she does not take the form of proxy. Therefore, barring any special circumstance, such as where a taxpayer collects taxation data on the pretext of promoting the convenience of a taxpayer even though he/she is not entitled to provide tax agent services at an organization to which he/she belongs, and files a return in the name of a lent certified tax accountant through the tax accounting program, barring special circumstances, such as where he/she was subject to the direction and supervision of such certified tax accountant

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

(1) The Defendant, as a branch president of the Nonindicted Incorporated Association ○○○○○ Branch (hereinafter “instant branch president”), finally decided whether to enter into an advisory contract with a certified tax accountant on the lending of the establishment and title of the tax accounting program necessary for reporting value-added tax (hereinafter “instant program”).

(2) The instant branch employees prepared the value-added tax return of members wishing to use the instant program, and then converted and transmitted the said return to the home office, which is the national tax information and communications network under the name of the leased tax accountants, thereby making tax accountants more than KRW 1,000 members as tax agents in each taxable period.

(3) A certified tax accountant who lends his name does not seem to have directed and supervised the instant branch employees’ reporting of value-added tax.

(4) The Defendant urged the instant branch employees to perform their duties faithfully in relation to the reporting of value-added taxes, and received reports on the number of reports of value-added taxes by employees and approved them.

C. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant constitutes a direct principal offender under the Certified Tax Accountant Act under the instant penal provision, since the Defendant, although not qualified as a tax accountant, prepared a value-added tax return by its members under the name of a tax accountant who jointly lent his/her name with his/her employees through the instant program without any direction and supervision, and filed a value-added tax return in the name of such tax accountant. In so doing, the lower court is justifiable to have determined that the Defendant constitutes a direct principal offender under the Certified Tax Accountant Act. In so determining, the lower court did not err by misapprehending the legal doctrine as to

2. As to grounds of appeal Nos. 3 and 4

The lower court rejected Defendant’s assertion related to lawful acts on the ground that the Defendant failed to meet the requirements, such as the reasonableness and supplement of the means and methods, on the grounds that he/she could cooperate in the report of value-added tax by providing guidance and guidance on the report of value-added tax to the members, even though the motive and purpose of the return of value-added tax could be deemed justifiable if the Defendant acted on behalf of its members for the convenience of its members. Furthermore, the lower court rejected Defendant’s assertion that there was no recognition of illegality on the ground that the Defendant did not have any justifiable ground for mistake even if he/she did not recognize illegality.

Examining the reasoning of the judgment below in light of the relevant legal principles and evidence duly admitted, the above judgment below is just, and there is no error in the misapprehension of legal principles as to legitimate acts under Article 20 of the Criminal Act and mistake of law under 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-hee (Presiding Justice)