[1] The meaning of "Fraud and other unlawful acts" under Article 9 (1) of the Punishment of Tax Evaders Act

[2] The case holding that running an entertainment tavern by borrowing a business registration name constitutes a case where he evades a tax by fraud or other unlawful means

[3] It is distinguished from Article 11 of the Punishment of Tax Evaders Act that imposes punishment on the subject of tax evasion and the person responsible for collecting withholding taxes under Article 9(1) of the same Act

[4] The case holding that the defendant cannot be punished under Article 9 (1) 3 of the Punishment of Tax Evaders Act on the grounds that he is not liable for tax payment, in case where the business income tax imposed on the defendant who operated an entertainment drinking house by borrowing his business registration name is income tax on the "income amount of service fee imposed only by the defendant who is liable for withholding

[1] "Fraud and other unlawful act" under Article 9 (1) of the Punishment of Tax Evaders Act refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes.

[2] The case holding that the defendant, while running an entertainment tavern, has evaded tax by fraud or other unlawful means by establishing a credit card merchant under the name of a third party after having registered its business, and preparing a credit card sales slip under the name of the third party and concealing the defendant's revenue

[3] The criminal subject of the crime of tax evasion under Article 9 (1) of the Punishment of Tax Evaders Act is a taxpayer under Article 2 (9) of the Framework Act on National Taxes, a representative of a corporation or an individual, an agent, employee, and other employees under Article 3 of the Punishment of Tax Evaders Act, and a person who does not have such status is merely a co-offender in the tax evasion of the taxpayer even if the person liable for tax withholding is the person liable for tax evasion, and cannot be the person liable for tax evasion independently. The crime under Article 11 of the Punishment of Tax Evaders Act is clearly distinguishable from the crime of tax evasion of the so-called agreement under Article 9 (1) of the Punishment of Tax Evaders Act, in which the person liable for tax evasion fails to collect the amount of tax withheld from the taxpayer

[4] The case holding that the defendant cannot be punished pursuant to Article 9 (1) 3 of the Punishment of Tax Evaders Act, since he is not liable for tax payment, in case where the business income tax imposed on the defendant who operated an entertainment tavern by borrowing the name of business registration is income tax on the "income amount of service fee that the defendant bears only the obligation to withhold and pay as

[1] Article 9 (1) of the Punishment of Tax Evaders Act / [2] Article 9 (1) of the Punishment of Tax Evaders Act / [3] Articles 3, 9 (1), and 11 of the Punishment of Tax Evaders Act, Article 2 subparagraph 9 of the Framework Act on National Taxes / [4] Articles 9 (1) 3 and 11 of the Punishment of Tax Evaders Act

[1] [3] Supreme Court Decision 97Do2429 delivered on May 8, 1998 (Gong1998Sang, 1679) / [1] Supreme Court Decision 2001Do3797 delivered on February 14, 2003 (Gong2003Sang, 871 delivered on May 28, 2004)

Defendant

Defendant

Jeonju District Court Decision 2003No1375 delivered on August 26, 2004

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

1. "Fraud and other unlawful acts" under Article 9 (1) of the Punishment of Tax Evaders Act refers to fraudulent or other active acts that make it impossible or considerably difficult to impose and collect taxes (see Supreme Court Decision 2001Do3797, Feb. 14, 2003, etc.). Examining the records in light of such legal principles, the defendant's act of opening a credit card merchant in the name of a third party and concealing the defendant's revenue by making a credit card sales slip in the name of the third party in running the entertainment tavern of this case, and thereby it is recognized that the defendant evaded taxes as stated in each of the criminal facts of this case (excluding the annexed crimes No. 5, No. 6, and No. 14 of the annexed crimes of the first instance judgment). Accordingly, it is proper to find the court below guilty of the crime of tax evasion of this part in the same purport, as otherwise alleged in the grounds of appeal. It does not err by misapprehending the facts against the rules of evidence or by misapprehending the legal principles on the tax evasion under Article 9 of the Punishment Act.

2. The court below also found the defendant guilty of all the charges on the part that the defendant evaded business income tax of 1,866,700 won and business income tax of 410,850 won in January 2000, which were July 14, 2000, which were July 5 of the year 1999, No. 2,43,200 won of business income tax of 2,43,200, and No. 6 of the business income tax of 1,866,700 in July 200 of the year belonging to 14, but it is not acceptable in the following point.

Income tax is calculated by dividing it into global, retirement, capital gains, and forest income (Article 4(1) and Article 14(1) of the Income Tax Act), and global income tax is calculated by making the global income deduction from the total amount of interest income, dividend income, real estate rental income, business income, labor income, temporary property income, annuity income, and other income (Article 14(2) of the Income Tax Act). Since income tax is imposed on the income for one year from January 1 to December 31, 19 (Article 5(1) of the Income Tax Act), the income earned by the defendant from his operation of the entertainment tavern of this case is "business income generated from lodging and restaurant business under Article 19(1)8 of the Income Tax Act" and it is calculated by adding it to the global income that the defendant must report from May 1 to May 31 of the following taxable period, and in this case, the tax base of the global income is taxed as the global income tax No. 9, which is the business income tax No. 5000, No. 614.

Therefore, the court below should have judged whether the business income tax is a taxpayer under the tax liability due to the following provisions of Article 1 (4) of the Punishment of Tax Evaders Act by examining the issue of the tax base of each business income stated No. 5, No. 6 and No. 14. The court below should have determined whether the taxpayer constitutes a crime of tax evasion (see Article 184-2 (2) of the Income Tax Act), since the business income tax cannot be imposed under Article 1 of the Punishment of Tax Evaders Act and Article 1 of the Income Tax Act, and the service charges of the taxpayer under Article 1 (4) of the Income Tax Act are stated separately from the value of supply of invoice, tax invoice, receipt, or credit card sales slip No. 9 (limited to the case where the service charges are not appropriated as his own revenue amount) and the taxpayer is not imposed under Article 184-2 (1) 7 of the Income Tax Act, Article 14 (3) of the Income Tax Act and Article 2 of the Income Tax Act, which is the taxpayer under the Income Tax Act, shall be imposed on the taxpayer and the corresponding tax office of the taxpayer.

Therefore, the court below found the defendant guilty of violating the Punishment of Tax Evaders Act due to the evasion of business income tax as stated in Nos. 5, 6 and 14 of the Punishment of Tax Evaders Act against the defendant, and there was an error of law by failing to exhaust all necessary deliberations on the subject of the business income tax and taxpayers, or by misapprehending the legal principles on the subject of the tax evasion under Article 9 (1) of the Punishment of Tax Evaders Act, which affected the conclusion of

3. Therefore, among the judgment below, the part convicting the defendant of violation of the Punishment of Tax Evaders Act due to the evasion of business income tax as stated in Nos. 5, 6 and 14 of the crime sight table Nos. 5, and the remaining part of the judgment below shall be reversed. The defendant's appeal is without merit, but the court below found the defendant guilty of all of the facts charged in Nos. 1 through 9 of the crime sight table falling under the latter part of Article 37 of the Criminal Act as concurrent crimes under the former part of Article 37 of the Criminal Act, and sentenced one punishment by deeming them as concurrent crimes under the former part of Article 37 of the Criminal Act. As to the facts charged in Nos. 10 through 16 of the crime sight table as concurrent crimes under Article

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)