[1] Meaning of “Fraud or other unlawful act” in the crime of evading tax under Article 9(1) of the former Punishment of Tax Evaders Act, and whether the act of issuing a false revised tax invoice constitutes the grounds for issuing a revised tax invoice as stipulated in the statutes with intent to evade value-added tax (affirmative)

[2] Details of "criminal intent" in the crime of tax evasion

[1] Article 9(1) (see current Article 3(1) and (6) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010) / [2] Article 9(1) (see current Article 3(1) and (6)) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 9919, Jan. 1, 2010)

[1] Supreme Court Decision 83Do2050 Decided May 14, 1985 (Gong1985, 863), Supreme Court Decision 99Do5191 Decided February 8, 2000 (Gong2000Sang, 651) / [2] Supreme Court Decision 2004Do817 Decided June 29, 2006 (Gong2006Ha, 1458), Supreme Court Decision 2007Do9689 Decided April 10, 2008 (Gong201Ha, 1556)

Defendant

Defendant

Attorney Lee Chang-hoon

Seoul High Court Decision 2012No1516 decided September 21, 2012

The appeal is dismissed.

The grounds of appeal are examined.

In the crime of tax evasion under Article 9(1) of the former Punishment of Tax Evaders Act (wholly amended by Act No. 919, Jan. 1, 2010), the term “Fraud or other unlawful act” means an act which makes it possible to evade taxes, that is, an act which is recognized as unlawful by social norms, such as a deceptive scheme which makes it impossible or considerably difficult to impose and collect taxes (see, e.g., Supreme Court Decisions 83Do2050, May 14, 1985; 9Do5191, Feb. 8, 2000). If a person liable to pay taxes issues a false revised tax invoice as if it does not fall under any of the grounds for the issuance of the revised tax invoice as stipulated in the statutes to evade value-added tax, it constitutes “Fraud or other unlawful act” which makes it impossible or considerably difficult to impose and collect value-added tax, and thereby, constitutes a crime of tax evasion, 200Do1684, supra.

In full view of the adopted evidence, the lower court determined that the issuance of revised tax invoices and the issuance of revised tax invoices to six business partners other than the instant drugs that were duly issued upon return of all the sales products constitutes fraud and other fraudulent acts, since the issuance of revised tax invoices and the issuance of revised tax invoices, which are stipulated in Acts and subordinate statutes, did not constitute grounds for issuance of business expenses, even though the amount discounted from the sales amount was merely that the Nonindicted Company did not receive business expenses, and thus, did not constitute grounds for issuance of revised tax invoices as stipulated in the Acts and subordinate statutes, it is clear that the Defendant issued tax invoices for the total amount of the initial sales amount, and issued tax invoices for the reduction of the value-added tax imposed upon the Defendant’s return, and that the Defendant filed a false return on the tax base and tax amount by reducing sales amount on the basis of the revised tax invoice while filing the final return of value-added tax, and thus, the issuance of revised tax invoices and the filing of tax invoices for six business partners other than the instant drugs that were duly issued with revised tax invoices.

In light of the aforementioned legal principles, provisions of relevant Acts and the records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the mistake of facts or the crime of tax evasion, the crime of tax evasion, and the principle of substantial taxation.

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

Justices Lee Sang-hoon (Presiding Justice)