[1] In a case where a chemical factory operator manufactures small and medium softs, which can be used as fuel such as automobiles, and Melauts, and sells them in a separate container, the case holding that it does not constitute "manufacturing and selling a product similar to gasoline which can be used as fuel for automobiles," which is subject to traffic tax, etc.

[2] The method and requirement of estimating the amount of income, etc., which serves as the basis for calculating the amount of tax evasion in relation to the tax evasion crime

[1] In a case where a chemical factory operator manufactures and sells a small softer and Melauter which can be used as fuel for automobiles, etc. without mixing them with 1:1, the case holding that in a case where the chemical factory operator manufactured and sold them in a separate container without mixing them, this does not constitute “manufacturing and selling them as fuel for automobiles, which is similar to gasoline, which can be used as fuel for automobiles,” which is subject to traffic tax

[2] In the case of a crime of tax evasion, the presumption calculation of the amount of income, etc., which is the basis for calculating the amount of tax evaded, shall be based on the objective and reasonable method generally acceptable, and if the result is highly probable and correct, it shall be permissible to allow it. However, even in this case, the presumption method should be provided

[1] Article 2 subparag. 10 and Article 29 of the Petroleum and Petroleum Substitute Fuel Business Act, Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 8 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 7 and 9 of the Traffic Tax Act, Article 14 of the Enforcement Decree of the Traffic Tax Act, Article 69 of the

Defendant

Kim Jong-tae

Attorney Lee Sung-soo

1. The defendant is innocent.

2. The summary of the judgment against the defendant shall be published;

1. Summary of prosecution by prosecutors and issues thereof;

The summary of the prosecution by the prosecutor is that the defendant, while selling similar gasoline by fraud or other illegal means, he/she evaded taxes of KRW 605,378,910 in total (the statutory penalty: the fine equivalent to two to five times the amount of traffic tax and education tax for three or more years) including traffic tax and education tax in 2005, total of KRW 876,014,481, traffic tax and education tax in 2006, and the amount of education tax in 205,378,910. Accordingly, the defendant is not liable to pay traffic tax and education tax, and the calculation method of the amount of evaded tax is also unreasonable. Accordingly, the issue of this case is to determine whether the defendant has evaded traffic tax, etc. and to determine the proper sentence within the statutory penalty in the case of conviction

2. Public prosecution;

A. The Defendant, from August 2005 to February 2, 2006, was a person who manufactured pseudo petroleum products with a trade name in the Daegu Seo-dong (hereinafter omitted) chemical name.

B. The Defendant,

(1) On September 2005, the above (trade name omitted) chemical factories and places of business are equipped with related facilities for the purpose of using or making use of automobiles, etc., and where pseudo petroleum products are mixed with luluene, 18-liter 18-litererererererer, a petrochemicals, by discharging and subdividing them through a scam storage tank, each of them is manufactured by manufacturing 18-litererererer, and the intermediate wholesalers and retailers as above, one small-scale 1,6,442-litererer, one of which was manufactured, as 16,442-liter, and the similar 16,47-literererererer, 166-1, 366-1, 47, 167, 167, 167, 375-1, 47, 167, 167, 375, 167, 167, 365, 147

Table 1

On September 1, 2005, 166,427,227,97, 205, 34,199, 580, 207, 205, 426, 207, 356, 3570 102,403, 403, 4402, 359, 463 192, 705 28,846, 905, 221, 159, 6103, 305, 426, 16327, 205, 205, 205, 205, 344, 167, 205, 205, 205, 344, 1962, 262, 196, 785, 2005.

(2) From January 1, 2006 to February 28, 2006, in the same manner as indicated in the preceding paragraph, the following: (a) sold similar gasoline 983,956 liter as indicated in Table 2 attached hereto and evaded traffic taxing KRW 526,416,450 and education taxing KRW 78,962,460 and KRW 605,378,910.

Table 2: Table 2>

On January 1, 2006, the number of similar gasoline 573,155 306,637,920 45,95,680 352,633,600 219,778,5301 219,778,530 32,96,780 252,780 252,745,310 983,956 526,416,450 76,4508,462,462,460,460 605,378,910

3. Claims by the defendant and his defense counsel;

A. As stated in the facts charged, small and mediumerer and Meleler sold by the Defendant is merely a product at the stage before reaching the status of pseudo petroleum and cannot be deemed as a pseudo petroleum product. Therefore, it is not subject to traffic tax and education tax.

B. The Defendant does not sell only a set of Baut and Maelcer, but also sell it individually, and the amount of evaded tax recorded in the facts charged is merely an estimate calculated by a reasonable and unreasonable method.

4. Relevant statutes and facts recognized;

(a) Relevant statutes;

It is as shown in the attached Form.

B. Facts of recognition

According to the evidence Nos. 17 (Evidence), 35, 36, 37, 38, 44 (Evidence No. 44), 2 (Evidence Investigation Report), 3 (Evidence No. 4), 4 (Evidence No. 5 (Evidence No. 4), 7 (Evidence No. 7), 9 (Evidence No. 4), 10 (Evidence No. 4 of Investigation Report No. 1914), 11 (Evidence No. 1914), 12 (Evidence No. 1914), 3 (Evidence No. 47), 13 (Evidence No. 4, 13 (Evidence No. 46 of Investigation Report No. 1914), 4 (Evidence No. 1 of Investigation Record No. 1914), 12 (Evidence No. 13 (Evidence No. 14), 13 (Evidence No. 154), 2 (Evidence No. 14), 5 (Evidence No. 6), 15 (Evidence No. 14), 6 (Evidence No.

(1) The Defendant registered (trade name omitted) chemical business in Seo-gu, Daegu-dong (hereinafter omitted) where the location of the Defendant is located as a type of business, such as manufacturing of dilution products.

(2) On July 6, 2006, the Defendant was sentenced to a suspended sentence of two years for a violation of the Occupational Safety and Health Act and a violation of the Petroleum and Petroleum Substitute Fuel Business Act for one year on July 14, 2006 in Daegu District Court Decision 2006Da1366 and 1460 (Joint), and the above judgment became final and conclusive on July 14, 2006. The criminal facts constituting a violation of the above petroleum and Petroleum Substitute Fuel Business Act committed with Nonindicted 1, etc. in collaboration with the Defendant from August 9, 2005 to February 21, 206, the Defendant used gasoline or light oil as fuel for 40,00 liter storage tanks, 5,100 liter storage tanks, 10,000 liter storage tanks, 10,000 liter storage tank and 10% of the total amount of 30,000 liter, 130% of the total amount of petroleum products mixing or 180% of them.

(3) As stated in the facts charged in the Daegu District Court case No. 2006Kadan1366, 1460 (combined), the Defendant sold the sales tax invoice to retail or intermediate wholesalers for the purpose of using or allowing them to be used as fuel for automobiles, etc. In fact, the Defendant issued sales tax invoice to the company that borrowed its name through the intermediary wholesaler, etc., who was not a customer who sold the said sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-subsub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub

(4) The small parter sold by the Defendant is a petrochemicals made by mixing petrochemicals with Toluene and alcohol content, which is a raw material. The Ename Thiner is made by discharging and subdividing the soft, which is a raw material, through a storage tank, with a petroleum product (use). The Defendant, at the request of the purchaser of the manufactured small parter and the Ename THner, sold in set the price of the set, and the selling price of one set was KRW 22,50 through 26,000,00 in accordance with the ratio of Toluene of small parter.

(5) On the other hand, the Daegu High Military Quality Management Agency stated the result of the test and analysis that it constitutes a “pseudo petroleum product” as defined in Article 2 subparag. 10 of the Petroleum and Petroleum Substitute Fuel Business Act if the said sub-pacter and the lulaut are used as a motor vehicle fuel (oil).

(6) On the basis of the books of daily production sales status from January 1, 2006 to February 28, 2006, the head of the competent tax office, determined the traffic tax and education tax for 2006 that the Defendant evaded by determining the volume of the Defendant’s sales of small and medium-scale width and Aelbelcer as one set, and calculated the traffic tax and education tax for 2006. (2) From August 9, 2005 to December 31, 2005, the total sales amount was determined based on the sales books, and then calculated the average small and medium-scale width and Eelcer’s sales amount by dividing them into the average small and medium-scale width and Eelcer’s sales amount per one liter, and calculated the traffic tax and the traffic tax for 805% of the total sales volume calculated in accordance with the books of daily production sales status for 2006 by applying Article 205 and the education tax for 200.

5. Determination

A. Whether the sale of pseudo petroleum products can be deemed as manufacturing and selling pseudo petroleum products by determining the price as a set of a sub-pulner and a Meluter

(1) The elements of traffic tax and education tax evasion are “manufacture and release of taxable goods which can be used as fuel for automobiles”.

(2) In addition, according to the relevant laws and regulations, any person who manufactures and takes out gasoline, pseudo petroleum products (i.e., mixing petroleum products with other petroleum products, mixing petrochemicals with petroleum products, mixing petrochemicals with petrochemicals, or manufactures petroleum products or petrochemicals with materials containing carbon and hydrogen, with the purpose of using them as fuel for automobiles, etc. or using them as fuel for automobiles, etc., is liable to pay traffic tax, and any person liable to pay traffic tax under the Traffic Tax Act is liable to pay traffic tax. Whether it is taxable goods shall be determined in accordance with the form, use, nature, and other important characteristics of the relevant goods regardless of their names, and even if the relevant goods are shipped out in an incomplete or incomplete state, it shall be treated as finished products that can perform its functions with the main ingredients of the relevant goods.

(3) First, it is examined as to whether the smallerer manufactured by the Defendant and the Heluta Celus are “those similar to gasoline which can be used as fuel for automobiles,” which are prescribed as traffic tax in each of the relevant laws and regulations.

According to the evidence of paragraph (b) of Article 4, it is not sufficient to recognize that sub-puger and Melauter are individually used as fuel for automobiles, etc., and they can be used as fuel for automobiles, etc. only if sub-puger and Melaut are used as fuel for automobiles, etc. (if mixed, it falls under pseudo petroleum products manufactured as "the mixture of petrochemicals with petroleum products" as provided by Article 2 subparagraph 10 of the Petroleum and Petroleum Substitute Fuel Business Act). The result of testing and analysis (Evidence No. 4) by the Korea Petroleum Quality Control Agency in Daegu North Korea's Gyeongbrop or Melaut is individually used or usable as fuel for automobiles, etc. (in particular, it is difficult to recognize that sub-puger or Melauter merely packaged in a container without any mixture, addition, chemical change, etc., and it can be deemed that Melaper is manufactured "Melaber," but it can not be deemed that it is a mixture of gasoline and packaging, etc. used as fuel subject to taxation.

Thus, the above sub-scoper and Aelcoper before the mixture cannot be deemed as a finished product of "those similar to gasoline which can be used as fuel for automobiles," and it is merely at the stage of incomplete or incomplete completion. However, each condition before the mixture of sub-scoper and Aelcoper cannot be deemed as a small-scoper and Aelcoper with the main ingredients of each automobile fuel. Thus, it cannot be deemed that the Defendant manufactured "those similar to gasoline which can be used as fuel for automobiles" by using the manufacturing of sub-scoper and Aelcoper, as it is difficult to see that the sub-scoper and Aelcoper have the main ingredients of each automobile fuel. (The imposition of traffic tax and education tax on the premise of

(4) Next, in the case where the quantity of the sold small-scale width and the Aelaculner is the same, the Defendant set the selling price in the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the Defendant, which is the same as that of the sale of the small-scale width and the Aelaculner, the Defendant may consider whether the set of the sale price as “a manufacturing and selling a product similar to gasoline which is usable as fuel for automobiles.”

The interpretation and application of tax laws and subordinate statutes and their penal provisions upon the request of the principle of legality and the principle of no punishment without law should be strict, and interpretation of analogical interpretation, expansion interpretation, and policy should not be permitted. In particular, such strict and predictability should be more needed in cases where certain taxes are imposed without conditions according to the sales volume, such as production cost, sales amount, value added, and profits regardless of whether there are profits or not. Furthermore, under the principle of no punishment without law guaranteed by the Constitution, substantial or social norms, necessity of taxation, citizen sentiment is important, but the clarity of tax laws and subordinate statutes and their penal provisions and prior legislation are very important in addition to these reasons. However, the traffic tax laws and regulations provide that the determination of whether the goods fall under the taxable goods shall be made based on the incomplete or uncompletion of the goods concerned, and there are no provisions that determine their ingredients or functions by integrating two or more separate goods (On the other hand, Article 1(9) of the Special Consumption Tax Act, Articles 2 and 9 of the Enforcement Decree of the Special Consumption Tax Act, and where the goods are sold or sold separately with the goods being sold or sold.

Thus, even if the price was determined and sold as a set of set set set of the Souter and Aututa, it is difficult to view that the act of selling each product in its entirety after manufacturing the Souter and Aututa, which is similar to gasoline, was manufactured or taken out as fuel for automobiles, etc.

B. Appropriateness of the method of calculating the evaded tax amount stated in the facts charged

The estimation of the amount of income, etc., which serves as the basis for calculating the amount of evaded tax in relation to a crime of tax evasion, shall be permitted if the method is an objective and reasonable way generally acceptable, and if the result is highly probable and correct, it shall be permitted. However, even in this case, the presumption method shall be provided for

The tax amount of evaded tax in 2005, written in the facts charged, shall be calculated according to the calculation method of the tax amount of evaded tax in Seogugu as stated in paragraph 4(b), and the price of liter's small and mediumer per liter and Aelcer's price shall be raised in favor of the defendant (732.44 won)

(6) According to the relevant Acts and subordinate statutes, where the account books and other documents necessary for calculating the traffic tax base are either insufficient or false, the estimation may be made. The estimation is that “(i) the method of calculating the amount of output with the authority of other partners in the same business situation where the entry is deemed justifiable and the report is not faithfully corrected, ② the method of calculating the amount of output surveyed with respect to the input raw materials by type of business applying the market price of the quantity supplied during the relevant taxable period, ③ the method of calculating the amount or value of human and material facilities (employee, guest room, workplace, vehicle, water supply and electricity, etc.) related to the business, ④ the method of calculating the amount of operation efficiency determined by the Commissioner of the National Tax Service to determine the relationship between the quantity or total quantity of the raw and subsidiary materials used for production by type of business and area, namely, the standard determined by the Commissioner of the National Tax Service to calculate the amount of sale and purchase within a reasonable period of time determined by the relevant Acts and subordinate statutes as the average trading profit ratio or the amount of sale and purchase during the relevant taxable period.”

6. Conclusion

Therefore, since the above facts charged constitute a case where there is no proof of a crime, a not-guilty verdict under the latter part of Article 325 of the Criminal Procedure Act and a summary of judgment under Article 58(2) of the Criminal Act

[Attachment] Related Acts and subordinate statutes: omitted

Judges Yoon Jong-gu (Presiding Judge)