Whether Article 11 of the Punishment of Tax Evaders Act, which is a penal provision against a withholding agent under the Local Tax Act, can be punished by applying the penal provision to a person liable for special collection of butchery tax under the Local Tax Act (negative)

In light of Article 11 of the Punishment of Tax Evaders Act and Article 234-4(1) of the Local Tax Act, the term “special collection” as stipulated in each Act is distinguishable from the definition definition of each Act, as well as from the nature and institutional purpose thereof. Article 179-3(1) of the Local Tax Act on the special collection of resident tax provides that “the person liable for special collection under the provisions of the Income Tax Act or the Corporate Tax Act shall be the person liable for special collection of resident tax” under the premise that the person liable for special collection is distinguished from the person liable for special collection of resident tax, and Article 84(2) of the Local Tax Act provides a separate provision that “the person liable for special collection of the butchery tax shall be the person liable for special collection of the butchery tax, despite the separate provision on the application of the Punishment of Tax Evaders Act to the person liable for special collection of the butchery tax as stipulated in Article 11 of the Punishment of Tax Evaders Act. Thus, insofar as there is no separate provision that the person liable for special collection of butchery tax in relation to punishment of offenses under the Local Tax Act cannot be easily applied as it is against the principle of penal punishment of the general person.

Article 11 of the Punishment of Tax Evaders Act, Articles 84 (1) and (2), 179-3 (1), and 234-4 (1) of the Local Tax Act, Article 12 (1) of the Constitution

Supreme Court en banc Decision 92Do1428 delivered on October 13, 1992 (Gong1992, 3190) Supreme Court Decision 2003Do6535 Delivered on February 27, 2004 (Gong2004Sang, 578)

Defendant 1 and one other

Prosecutor

Busan District Court Decision 2004No1422 delivered on October 28, 2004

The appeal is dismissed.

The grounds of appeal are examined.

According to Article 234-4 (1) and (2) of the Local Tax Act, butchery tax is to be collected as a person responsible for extraordinary collection under the conditions as prescribed by Municipal Ordinance, by stipulating that a person responsible for extraordinary collection is liable for reporting and paying the butchery tax to be collected or to be collected in the last month of each month. However, Article 84 (1) of the same Act provides that “The Punishment of Tax Evaders Act shall apply mutatis mutandis to offenses related to local taxes,” and Article 11 of the Punishment of Tax Evaders Act provides that “Where a person responsible for withholding taxes fails to collect or pay the tax collected without any justifiable reason, he/she shall be punished by imprisonment with prison labor for not more than one year, or by a fine equivalent to the unpaid tax amount,” which provides that “The person responsible for extraordinary collection shall be punished by imprisonment with prison labor for not more than one year, or by a fine equivalent to the unpaid tax amount.”

Therefore, as alleged in the grounds of appeal by a public prosecutor, whether a person liable for extraordinary collection of butchery tax can be punished by applying Article 11 of the Punishment of Tax Evaders Act, which is a penal provision for “tax withholding agent” under Article 84(1) of the Local Tax Act. Article 11 of the Punishment of Tax Evaders Act provides that “collection of withholding taxes” collects national taxes from a person liable for tax payment under tax-related Acts (Article 2 subparag. 3 of the Framework Act on National Taxes) and a person liable for tax payment under tax-related Acts collects and pays on behalf of the person liable for tax payment when he/she pays income or revenue amount to the opposite contractual party. On the other hand, “special collection” under Article 234-4(1) of the Local Tax Act provides that a person liable for special collection of butchery tax shall be deemed a person liable for tax collection and pays the collected tax (Article 1(1)8 of the Local Tax Act), separate provisions from the head of a tax office or a local tax office under the premise that the person liable for extraordinary collection and payment of taxes is not only the person liable for special collection but also the person liable for special collection of taxes.

Therefore, inasmuch as there is no separate provision such as deeming a person liable for extraordinary collection of butchery tax as a withholding agent with respect to the punishment of offenses under the Local Tax Act, it is difficult for the person liable for extraordinary collection of butchery tax under Article 11 of the Punishment of Tax Evaders Act, which is a penal provision against a withholding agent under the Local Tax Act, to easily anticipate it from the perspective of the general public, in light of the fact that it is in violation of the principle of clarity in penal provisions or excessive expansion and abstract interpretation of penal provisions, it is not permissible in violation of the principle of no punishment without the law (see, e.g., Supreme Court en banc Decision 92Do1428, Oct. 13, 1992; 2003Do6535, Feb. 27, 2004).

The Supreme Court precedents cited in the ground of appeal by the prosecutor are different from this case, and thus it is not appropriate to invoke this case.

In the same purport, the court below is just in maintaining the first instance court which acquitted the Defendants of the facts charged of this case, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

On the other hand, the Supreme Court Decision 2004Do8758 Decided February 25, 2005, which found the person guilty of violating the Local Tax Act in the same case as this case, can no longer be maintained.

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

Chief Justice Lee Yong-chul (Presiding Justice)