In cases where stocks are purchased from persons with a special relationship at a higher price than the market price and the high-priced purchase price is excluded from taxes by reducing the amount of income by preparing a sales contract and an account book, etc. retroactive the date of purchase in order to prevent the occurrence of such high-priced purchase, whether the amount of income shall be deemed as not falling under tax evasion in view of the amount arising from the difference between the tax accounting and corporate accounting under Article 9-2 subparagraph 1 of the Punishment

Article 9 (1) of the Punishment of Tax Evaders Act provides that any person who evades a tax by fraud or other wrongful acts shall be punished for the crime of evading a tax, and Article 9-2 (1) 1 of the same Act provides that the amount arising from the difference between the tax accounting and corporate accounting in the determination of income amount under the Act shall not be deemed the income amount arising from such fraudulent or other unlawful acts. In order to conceal the transaction corresponding to wrongful acts, such as the preparation and keeping of a false sales contract and account books retroactive to the purchaser in order to purchase stocks from a person with a special relationship at a higher amount which is more than twelve times the market price, and to avoid the occurrence of such high-priced purchase of stocks, the document shall not be deemed to constitute a crime of evading a tax by actively manipulating the documents and making a false entry in the account book,

Article 8 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 9 (1) and Article 9-2 subparagraph 1 of the Punishment of Tax Evaders

Defendant

Defendant

Attorney Im Sk-soo

Seoul High Court Decision 98No2905 delivered on June 15, 1999

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed after the deadline for submission).

1. On the first ground for appeal

Article 9 (1) of the Punishment of Tax Evaders Act provides that any person who evades a tax by fraud or other wrongful acts shall be punished for the crime of tax evasion, and Article 9-2 (1) 1 of the same Act provides that in determining income amount under the Act, the amount resulting from a difference between tax accounting and corporate accounting shall not be considered as income amount resulting from such fraudulent or other unlawful acts.

According to the facts and records acknowledged by the court below, when the defendant purchased 1,548,245 shares of Korea Integrated Finance Corporation (hereinafter referred to as the "Korea Comprehensive Finance Corporation") with the market price of 540 won per share as listed shares from a specially related person on December 23, 1997, 6,760 won per share, the defendant entered the purchase date retroactively on July 2, 1997 where the above purchase date was high for pretending that it was no high-priced purchase, and on December 23, 1997, 1,200 shares of 1,20,000 shares of 540 won per share were sold to the Korea Comprehensive Finance Corporation. Accordingly, the defendant suffered losses from the investment loss of 540 won per share, and the income amount was reduced to the extent that it did not constitute a false calculation of 209,000 won per share to the extent that it did not constitute a false calculation of 209,000 won per share.

Therefore, the decision of the court below that found the defendant guilty of evading the tax of this case is just, and there is no error in the misapprehension of legal principles as to the income amount due to a difference between the tax accounting and the corporate accounting under Article 9-2 subparagraph 1 of the Punishment of Tax Evaders Act, contrary to

2. On the second ground for appeal

In light of the records, the court of first instance, as cited by the court below, recognized the amount of corporate tax evaded by the defendant as KRW 2,089,920,00 on the premise that the amount of corporate tax evaded by the defendant was KRW 7,464,00,00,00 due to the defendant's act of holding that the court of first instance, which was cited by the court below, was the amount of corporate tax evaded by the non-indicted 1 corporation

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

Justices Park Jae- Jae (Presiding Justice)