2017No4147 Violation of the Punishment of Tax Evaders Act

A

Defendant

Park Jong-hee (Public Prosecution) and Lee Dong-hee (Public Trial)

Attorney Full-time

Busan District Court Decision 2017 Height2829 Decided October 20, 2017

September 20, 2018:

The judgment of the court below is reversed.

The defendant shall be innocent.

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

1. Summary of grounds for appeal;

Article 32 (1) of the Value-Added Tax Act stipulates that the person who is obligated to issue a tax invoice to the person who is supplied with goods or services shall be limited to the person who is obligated to issue the tax invoice. In full view of the fact that Article 32 (1) of the Value-Added Tax Act provides that the business operator shall apply for business registration (Article 8 (1) of the same Act), and that the business operator's registration number and name or name should be entered in the tax invoice issued by the business operator (Article 32 subparagraph 1 of the same Act) (Article 32 of the same Act), etc., it is reasonable to regard the above "business operator" as limited to the "business operator who has registered the business" under Article 16 (1) of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013). Therefore, unless the name and trade name of the sales business operator who supplied marine oil to the defendant is unknown, the above sales business operator cannot be deemed to be a person liable to issue the tax invoice under the Value-Added Tax Act.

2. Determination

A. Summary of the facts charged in this case

No one shall be issued a tax invoice in collusion by a person who is liable to obtain a tax invoice under the Value-Added Tax Act.

The term “stock company B” (hereinafter referred to as “B”) is a corporation that is established on February 12, 2009 and is engaged in oil sale and transportation business until December 24, 2015. The defendant is the representative of the defendant. The defendant is also the "bunker fuel, ship fuel oil (MFO)" in the five Busan Port on July 4, 2013 at the five Busan Port (Supplementary Dong-gu). The defendant is also the "B oil (bunker fuel floil, ship fuel oil (MFO)" in the court below's holding that there is about 90% of the unique sulfur, but the bunker -C, B-C, and 30% of the total supply value of fuel oil (including 200 wunker 20 wre 20 wre 20 wre 20 wre 30 wre wre 20 wre 20 wer-20 w (20 wer).2).2).

B. The judgment of the court below

In the event that an entrepreneur supplies goods pursuant to the Value-Added Tax Act, the lower court shall issue a tax invoice, except in extenuating circumstances, and may sufficiently recognize the facts charged in this case in full view of any special circumstance or data that could not be found that the supply of each sea fuel oil in this case is exempted from value-added tax, and thus, found the Defendant guilty of the facts charged in this case.

C. Judgment of the court below

1) Article 10(1)1 of the Punishment of Tax Evaders Act provides for punishing cases where a person obliged to prepare and issue a tax invoice under the Value-Added Tax Act does not issue a tax invoice or issues a false tax invoice. Article 10(2)1 of the Punishment of Tax Evaders Act provides for punishing cases where a person obliged to issue a tax invoice in collusion with a person obliged to issue a tax invoice in response to Article 10(1)1 of the Punishment of Tax Evaders Act does not issue a tax invoice or where a person is issued a false tax invoice in collusion with a person obligated to issue a tax invoice. As such, inasmuch as the person is punished for not receiving a false tax invoice with a non-paid tax invoice but is punished for a case of conspiracy, Article 10(1)1 of the Punishment of Tax Evaders Act and Article 10(2)1 of the same Act provide for the crime of violating Article 10(1) of the same Act and Article 10(2)1 of the same Act. Therefore, if there is no obligation to prepare and issue a tax invoice to the person supplying goods or services, it cannot be possible

2) Article 16(1) of the former Value-Added Tax Act (amended by Act No. 11873, Jun. 7, 2013; hereinafter referred to as the "former Value-Added Tax Act") explicitly stipulates that a registered business operator is obliged to issue a tax invoice in cases where an entrepreneur registered as a taxpayer supplies goods or services, while Article 32(1) of the former Value-Added Tax Act explicitly stipulates that the registered business operator is obligated to issue a tax invoice. However, Article 32(1) of the former Value-Added Tax Act stipulates that the portion of the registered business operator is deleted and simply referred to as a "business operator". The reason for the amendment is to clarify the grounds for imposing additional tax on an entrepreneur who has not

However, even if considering the above amendment and its purport, in full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below, it is reasonable to view that only “registered business operator who actually supplied goods or services” is liable to issue a tax invoice as well as the former Value-Added Tax Act.

(1) According to Article 8 (1) through (5) of the Value-Added Tax Act, a business operator shall apply for business registration to the head of the tax office having jurisdiction over the place of business within 20 days from the date of commencing business, and the head of the tax office having jurisdiction over the place of

In addition, Article 32 (1) 2 of the Value-Added Tax Act stipulates that "in addition to the registration number of a person who receives a supply" under Article 16 (1) 2 of the former Value-Added Tax Act, where a person who receives a supply is not a business operator or is not a business operator registered, a person who receives a supply shall enter a unique number or resident registration number as prescribed by the Presidential Decree, while Article 32 (1) 1 of the Value-Added Tax Act only stipulates that "the registration number of a business operator who provides a supply" shall be stated as "the same as Article 16 (1) 1 of the former Value-Added Tax Act". In particular, there is no way to issue a tax invoice even the supplier, even though he/she applied for a business within 20

Therefore, "unregistered entrepreneur" has no way to issue and deliver tax invoices under Article 32 of the Value-Added Tax Act, and there is no other procedure or method of issuing tax invoices by an entrepreneur who is not registered in the Value-Added Tax Act.

(2) On the other hand, a tax invoice is, in principle, issued at the time of supply for goods or services under Article 34 (1) of the Value-Added Tax Act, and thus, does not create an obligation to issue a tax invoice retroactively on the ground that the supplier of goods or services was registered as a business operator after being supplied with such goods or services. In addition, if the supplier of goods or services is unable to issue a tax invoice due to the relationship between the unregistered business operator and

(3) As long as the duty of issuing tax invoices cannot be acknowledged to an entrepreneur who has not been registered as a result of legislative failure, the penal provisions cannot be applied beyond the principle of no crime without the law. Even if the non-registered entrepreneur does not issue tax invoices, it cannot be punished under Article 10(2)1 of the Punishment of Tax Evaders Act, and the necessity of such punishment is recognized, the gap in such punishment is a matter to be resolved through legislation

3) However, since the evidence presented by the prosecutor alone does not have any evidence to acknowledge whether the Defendant was a business operator who traded with the Defendant, it is difficult to conclude that the Defendant in collusion with the person liable to issue the tax invoice pursuant to the Value-Added Tax Act did not receive the tax invoice, and there is no other

4) Therefore, the court below erred by misapprehending the legal principles or misunderstanding the legal principles, which affected the conclusion of the judgment, and the defendant's above assertion pointing this out has merit.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and it is again decided as follows.

【Discretionary Judgment】

The summary of the facts charged of this case is the same as that of the above 2. A. C., which constitutes a case where there is no proof of a crime as seen in the above 2.C., and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant under Article 58(2) of the Criminal Act is decided as per Disposition.

The presiding judge, judge and deputy judge;

Judges Kim Gin-won

The judge's netization