Whether it constitutes a “Fraud or other unlawful act” under Article 9(1) of the Punishment of Tax Evaders Act to impose the value-added tax on the entire name of joint business operators due to a cause that the business operator who constructs a new building and sells a building independently pretended to be a joint business operator (negative)

Even though the defendant was imposed value-added tax on all the above co-owners, including the defendant, on the ground that the person who is not the actual business operator was the joint business operator and was the joint business operator of the defendant, registered the building on the register of co-owners, and sold it on the register, the value-added tax imposed on the sale of the above newly constructed building is fully imposed on all the joint business operators unless the defendant himself appears to be one of the co-owners as joint business operators. Therefore, the defendant cannot be exempted from liability to pay value-added tax on the total amount of value-added tax, so it cannot be said that the imposition, collection of value-added tax is impossible or considerably difficult, and the fact that the defendant did not report and pay the value-added tax on the actual business operator of the building within the statutory period does not constitute fraud or other unlawful act that makes it impossible or significantly difficult to impose and collect taxes.

Article 25 of the Framework Act on National Taxes, Article 19 of the Value-Added Tax Act, Article 9 (1) of the Punishment of Tax Evaders Act

November 23, 1982, 81Do1737 decided Nov. 23, 1982 (No. 18 No. 698, 304 decided Nov. 18, 198)

Defendant

Prosecutor

Seoul Criminal District Court (83 Gohap922)

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

The lower court, on September 1977, purchased 270 square meters from Nonindicted 3 for the construction of a commercial building from his wife Nonindicted 1 and wife Nonindicted 2, and newly constructed 608.85 square meters on the above ground of the third underground floor, 608.6 February 6, 1978, after completing the registration of ownership transfer on September 22, 197 for the construction of a commercial building, and completed the registration of ownership transfer on September 22, 197 with the name of the Defendant himself and other Nonindicted 4, who is not the actual owner, and recognized the tax base of the building and the additional tax on the said nine joint names from February 10, 1978 to August 7, 197, and did not deliver the tax base of the building and the additional tax on the said nine separate names including the value-added tax, 306 won and the additional tax on the said nine separate owners, 306 won and the additional tax on the previous owner of the building, 407 167.7

Nevertheless, the court below found the above act not guilty on the ground that it does not constitute a case of evading taxes by fraud or other unlawful act under Article 9(1) of the Punishment of Tax Evaders Act.

However, in the process of new construction and sale of the above commercial building, the defendant registered 8 non-indicted 4 and non-indicted 8, who are not the actual business operator, on the register as if he were the joint business operator, and sold it to another person, and thereby, if he paid taxes, the defendant's liability to pay taxes would be exempted. In the event that the defendant is insolvent, the defendant would collect taxes from other joint names, and the defendant would have a criminal intent to evade taxes by registering the above 8 persons as joint owners. This constitutes fraudulent or other unlawful means, and even if the defendant did not report and pay the value-added tax within the statutory period constitutes a fraudulent or other unlawful act that makes it impossible or significantly difficult to impose and collect taxes, the court below erred in misapprehending the laws and regulations on Article 9 (1) of the Punishment of Tax Evaders Act and thereby acquitted the charged facts of this case.

2. Determination on the grounds for the above appeal

In the case of evasion of taxes by means of fraud and other illegal acts under Article 9(1) of the Punishment of Tax Evaders Act, the term "in the case of evasion of taxes" means the imposition, collection, or fraudulent acts which make it impossible or considerably difficult to impose and collect taxes.

However, the value-added tax that the Defendant evaded is the so-called proportionality to which certain tax rates apply to the value-added tax on the transaction of goods or services regardless of the size of the unit tax base, and thus, cannot be different depending on the difference of the tax base or the number of taxpayers. Meanwhile, according to the provisions of Article 25 of the Framework Act on National Taxes Article 25 of the Framework Act on National Taxes, the national tax related to the property jointly owned or jointly owned by the owner of the jointly owned property or joint business and the legal nature of the obligation

Therefore, even if the defendant constructed the above building as if he was the actual business operator and registered the above building in the register as joint business operator with the defendant and the joint business operator, and sold or sold it, if the defendant himself appears as one joint business operator, the value-added tax, which is a kind of national tax imposed upon the sale of the above new building, shall be imposed on all joint business operators (in this case, it became a notice of tax payment under the joint name of 8 persons other than the defendant). Therefore, the defendant cannot be exempted from liability to pay the total value-added tax, and thus, it cannot be imposed, collected, or considerably difficult. If the defendant is insolvent, the collection of the value-added tax cannot be collected. The defendant's actual business operator of the building is registered as the defendant's sole ownership, and the fact that the defendant did not report and pay the excessive value-added tax and the tax amount of the value-added tax within the statutory period does not constitute a fraudulent or other unlawful act. Thus, the court below's assertion that such act constitutes an unlawful interpretation under Article 9 (1) of the Punishment of Tax Evaders Act.

3. Ultimately, the prosecutor’s appeal is dismissed in accordance with Article 369(4) of the Criminal Procedure Act, since it is without merit.

It is so decided as per Disposition for the above reasons.

Judges Kim Sung-il (Presiding Judge)