In case where a person who did not supply goods or services delivers a tax invoice by forging the name of another person and stating it to the supplier, whether it constitutes a person subject to punishment under Article 10(3)1 of the Punishment of Tax Evaders Act (negative)

Article 10(1)1 of the Punishment of Tax Evaders Act provides that a person who is obliged to prepare and issue a tax invoice under the Value-Added Tax Act shall be punished for “where the person fails to issue a tax invoice or issues a tax invoice with false entries,” and Article 10(3)1 of the same Act provides that a person who issues a tax invoice under the Value-Added Tax Act without supplying goods or services shall be punished. In light of the language and legislative intent of the above, Article 10(3)1 of the Punishment of Tax Evaders Act provides that an act of issuing a tax invoice stating the person who does not supply goods or services as the person who does not supply the goods or services is punished, and thus, Article 10(3)1 of the Punishment of Tax Evaders Act provides that an act of delivering a tax invoice stating the person who does not supply the goods or services in the name of another person may be punished as a crime of forging private documents unless the person who supplied the goods or services prepares a tax invoice in the name of another person and issues it

Articles 10(1)1 and (3)1 of the Punishment of Tax Evaders Act, Articles 231 and 234 of the Criminal Act

Supreme Court Decision 2010Do1343 Decided May 10, 2012 (Gong2012Sang, 1037)

Defendant

Defendant

Attorney Voluntary Mobilization

Suwon District Court Decision 2013No3916 decided January 16, 2014

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

We examine the grounds of appeal.

1. Article 10(1)1 of the Punishment of Tax Evaders Act provides that “Where a person obliged to prepare and issue a tax invoice under the Value-Added Tax Act fails to issue a tax invoice or issues a tax invoice by false entry,” Article 10(3)1 of the Punishment of Tax Evaders Act provides that “an act of issuing a tax invoice under the Value-Added Tax Act without supplying goods or services” shall be punished. In light of the above language and legislative intent, Article 10(3)1 of the Punishment of Tax Evaders Act provides that “an act of issuing a tax invoice under the Value-Added Tax Act without supplying goods or services” shall be punished (see, e.g., Supreme Court Decision 2010Do13433, May 10, 2012). In cases where a person who fails to supply goods or services delivers a tax invoice by forging another person and entering it as a supplier, it shall not be punished as a crime of forging private documents unless the person who supplied the goods or services enters it as a person who supplied it in his/her name, it shall not be punished.

2. According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which rendered guilty of the facts charged in the case of this case by finding that the tax invoice under the name of a third party concerning the supply of goods constitutes the issuance of tax invoices under Article 10 (3) 1 of the Punishment of Tax Evaders Act even if the tax invoice is forged without the supply of goods, but examining the facts acknowledged by the court below in light of the above legal principles, the defendant forged the tax invoice of this case under the name of a third party without the registration of business under the Value-Added Tax Act, and thus, in such a case, it cannot be deemed to constitute the issuance of tax invoices under Article 10 (3) 1 of the Punishment of Tax Evaders Act. Thus, the court below erred by misapprehending the legal principles as to Article 10

3. 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 Kim Shin (Presiding Justice)