[1] Whether the act of issuing and receiving a false tax invoice and the act of submitting a list of total tax invoices by false seller and seller should be separately calculated (affirmative) / Whether each “supply price” separately calculated as above should be added to the calculation of “total supply price, etc.,” which is the standard for aggravated punishment under Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (affirmative)

[2] Purport of introducing the electronic tax invoice system under the former Value-Added Tax Act / Where a list of total tax invoices is submitted for the portion of issuance of electronic tax invoices for which it is unnecessary to submit a list of total tax invoices, but the part of the transaction is related to the electronic tax invoices issued falsely, whether the act of submitting to the Government the list of total tax invoices by seller under Article 10(3)3 of the Punishment of Tax Evaders Act constitutes “the act of falsely stating

[1] The act of issuing and receiving false tax invoices for the same transaction and the act of submitting a list of the total tax invoices by false seller and by seller should be separately calculated as separate acts separate from each other, which may be deemed as a result of each act, and the “value of supply” which may be deemed as a result of each act should also be separately calculated. In calculating the “total amount of supply values, etc.” which is the standard for aggravated punishment pursuant to Article 8-2 of the Act on the Aggravated Punishment,

[2] The former Value-Added Tax Act amended by Act No. 9268 of Dec. 26, 2008, effective January 1, 2010, introduced an electronic tax invoice system for the purpose of reducing excessive tax payment cooperation costs and tax administration costs related to value-added tax, which is the method of collecting the transaction, and enhancing transparency in transaction. Accordingly, the current Value-Added Tax Act requires corporate entrepreneurs and individual entrepreneurs prescribed by Presidential Decree to issue the electronic tax invoice, and shall transmit the details of the issuance to the Commissioner of the National Tax Service (Article 32(2) and (3). If the electronic tax invoice is issued or issued and the details of the issuance are transmitted to the Commissioner of the National Tax Service by not later than 11 of the month following the end of the taxable period or the scheduled return period to which the relevant goods or services belong (Article 54(2)), and the former Enforcement Rule No. 2 of the Value-Added Tax Act provides that the list of total tax invoices issued and sold in the form No. 100 (attached Form 1) may not be submitted. 21).

In light of the purport of the introduction of the electronic tax invoice system as above and the fact that there is no obligation to submit a list of total tax invoices by seller with respect to the portion of the electronic tax invoice issued by the Commissioner of the National Tax Service for which the details of issuance are transmitted to the Commissioner of the National Tax Service, and that even if submitted, the list of total tax invoices under the Value-Added Tax Act is not required to submit a list of total tax invoices, the submission of a list of total tax invoices pursuant to the Value-Added Tax Act shall not be deemed to have been made by entering the list of total tax invoices in accordance with the Value-Added Tax Act. Therefore, even if the part of the tax invoice is issued falsely, it shall not be deemed to constitute “an act of submitting

[1] Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) of the Punishment of Tax Evaders Act / [2] Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 10 (3) 1 and 3 of the Punishment of Tax Evaders Act, Article 16 (2) (see current Article 32 (2) and (3) (see current Article 32 (3)), Article 20 (1) (see current Article 54 (1) and (2)), Article 32 (2), (3), and (2) of the Value-Added Tax Act, Article 54 (1) and (2) of the former Enforcement Rule of the Value-Added Tax Act (Amended by Ordinance of the Ministry of Strategy and Finance No. 915, Jan. 1, 2010), Article 16 (3) 1 and 3 of the Punishment of Tax Evaders Act, Article 10 (3) 1 and 3 of the former Enforcement Rule of the Value-Added Tax Act (attached Form 3 [Attachment Form 1] 3 (Attachment 1) [Attachment 3]

[1] Supreme Court Decision 2009Do3355 Decided September 29, 201 (Gong2011Ha, 2278) Supreme Court Decision 2017Do1054 Decided September 7, 2017

Defendant

Defendant

Law Firm Law, Attorneys Ha Young-ju et al.

Seoul High Court Decision 2017No1264 decided July 6, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined ex officio.

1. The act of issuing and receiving false tax invoices for the same transaction and the act of submitting a list of total tax invoices by false seller and by seller should be separately calculated as separate acts separate from each other, which may be deemed as a result of each act, and the amount of supply, which may be deemed as a result of each act, should also be calculated separately. In calculating the “total amount of supply values, etc.,” which is the standard for aggravated punishment pursuant to Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment, etc. of Specific Crimes Act”), each “value of supply” separately calculated is reasonable (see Supreme Court Decision 2017Do1054, Sept.

However, the former Value-Added Tax Act, amended by Act No. 9268, Dec. 26, 2008; effective January 1, 2010, introduced an electronic tax invoice system for the purpose of reducing excessive tax payment cooperation expenses and tax administration expenses related to value-added tax, which is the method of transaction collection, and enhancing transparency in transactions. Accordingly, the current Value-Added Tax Act requires corporate entrepreneurs and individual entrepreneurs prescribed by Presidential Decree to issue an electronic tax invoice and shall transmit the details of issuance to the Commissioner of the National Tax Service (Article 32(2) and (3). If an electronic tax invoice is issued or issued and the details of issuance are transmitted to the Commissioner of the National Tax Service by not later than the 11th day of the month following the end of the taxable period or the scheduled return period to which the relevant goods or services belong (Article 54(2)); and the former Enforcement Rule No. 2 of the Value-Added Tax Act provides that a list of total amount of tax invoices issued and sold in attached Form 1, which is an electronic tax invoice in force (Article 210).

In light of the purport of the introduction of the electronic tax invoice system as above and the fact that there is no obligation to submit a list of total tax invoices by seller with respect to the portion of the electronic tax invoices issued by the Commissioner of the National Tax Service for which the details of issuance are transmitted to the Commissioner of the National Tax Service, and that even if submitted, the list of total tax invoices under the Value-Added Tax Act is not required to submit the list of total tax invoices, even if the list of total tax invoices was submitted with respect to the portion of the electronic tax invoices issued without any need to submit the list of total tax invoices, it is difficult to evaluate that the list of total tax invoices under the Value-Added Tax Act is submitted by entering the list of total tax invoices in a false manner. Therefore, even if

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. Of the tax invoices issued by the Defendant from February 3, 2015 to November 30, 2015 in the course of operating ○○○○○ trade, the amount equivalent to KRW 52,692,127,726, out of the total amount of supply value, the amount of KRW 52,692,127,726, out of the total amount of supply value entered in the final return on the first and second tax invoice for the year 2015, which was submitted by each seller at the time of filing the final return on the total amount of value-added tax for each seller (=407,741,818 won + 392,425,908 won) is false.

B. However, among the sales tax invoices entered in the list of total tax invoices by customer, submitted by the Defendant for the final return of value-added tax for the first quarter of 2015, the amount equivalent to KRW 389,560,000, out of the sales tax invoices entered in the list of total tax invoices by customer is related to the amount of electronic tax invoices issued, and the details were transmitted to the Commissioner of the National Tax Service before the 11th day of the month following the end of

C. In addition, it is related to the portion of the electronic tax invoices issued in an amount equivalent to KRW 392,425,908, out of the sales tax invoices entered in the list of the total tax invoices by customer, submitted by the Defendant for the final return of value-added tax for the second period of 2015, which was transmitted to the Commissioner of the National Tax Service prior to the 11th day of the month following the end of the pertinent taxable period.

3. We examine the above facts in light of the legal principles as seen earlier.

A. First of all, the portion not included in the issuance of electronic tax invoices among the list of the total tax invoices by customer in the first and second period of 2015 submitted by the Defendant should be added to the “total amount of supply values, etc.” as the standard for aggravated punishment pursuant to Article 8-2 of the Specific Crimes Aggravated Punishment Act, separate from the issuance of false tax invoices for the same transaction.

In the same purport, the lower court is justifiable in that the supply value in this part stated on the false tax invoice and the list of the total tax invoices by false customer is added to the “total supply value, etc.” under Article 8-2 of the Specific Crimes Aggravated Punishment Act, and it did not err by misapprehending the legal doctrine on the meaning of “total supply value, etc.” under Article 8-2 of the Specific Crimes Aggravated Punishment

B. However, in the case of the portion of KRW 781,985,908 (=389,560,000 + 392,425,908) out of the aggregate of supply values of electronic tax invoices issued by the Defendant among the aggregate of the above aggregate tax invoices submitted by the Defendant, it shall not be deemed that the Defendant submitted a false aggregate of the tax invoices by customer under the Value-Added Tax Act, separately from the issuance of false tax invoices for the same transaction. This portion is excluded from the “total supply values, etc.” recognized by the lower court, and it is apparent that the remainder does not exceed three billion won as stipulated in Article 8-2(1)2 of the Specific Crimes Aggravated Punishment Act. Accordingly, the Defendant’s act cannot be viewed as having been subject to the specific crime Aggravated Punishment Act

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on the value of supply corresponding to the portion of issuance of electronic tax invoices for which a list of total tax invoices is exempted from the duty to submit a list of total tax invoices on the grounds stated in its holding, and the meaning of “total amount of supply, etc.” under Article 8-2 of the Specific Crimes Aggravated Punishment Act. In so determining, the lower court erred by misapprehending the legal doctrine on the value of supply for the portion of issuance of electronic tax invoices entered in the list of total

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 Ko Young-han (Presiding Justice)