Open Decision Ledger · Criminal law
Negative amended invoices cancelling fictitious VAT invoices
Supreme Court, Nov. 26, 2020, 2020Do11345 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 특정경제범죄가중처벌등에관한법률위반(사기)·특정범죄가중처벌등에관한법률위반(허위세금계산서교부등)
Official text on the National Law Information Center
Question
Does issuing or receiving a negative amended VAT invoice, which cancels a fictitious VAT invoice issued or received with no real supply, fall under the offence in Article 10(3)(i) of the former Tax Offences Punishment Act, does it affect the completed offence, and must its supply amount be counted in the total used for aggravated punishment under Article 8-2(1) of the Aggravated Punishment of Certain Crimes Act?
Holding
No. The Supreme Court held that a negative amended invoice of the same supply amount, issued to cancel a fictitious VAT invoice, is not a new fictitious invoice and is merely a device to correct the earlier supply without real transaction, so it is not the offence under Article 10(3)(i) of the former Tax Offences Punishment Act, and it cannot affect the offence already completed by issuing or receiving the fictitious invoice. Its supply amount therefore need not be taken into account when totalling the supply amounts for aggravated punishment under Article 8-2(1) of the Aggravated Punishment of Certain Crimes Act. The Court reversed the part of the judgment below as to Defendant 2 and remanded that part to the Seoul High Court, while dismissing Defendant 1's appeal.
Points at issue, verbatim
재화나 용역을 공급하지 아니하거나 공급받지 아니하고 가공의 세금계산서를 발급·수취한 후 이를 취소하는 의미에서 같은 공급가액에 음(-)의 표시를 하여 작성한 수정세금계산서를 발급·수취한 경우, 뒤의 공급가액이 음수인 수정세금계산서를 발급·수취한 행위가 구 조세범 처벌법 제10조 제3항 제1호에서 정한 죄에 해당하는지 여부(소극)
Unofficial English translation
Where, after issuing or receiving a fabricated tax invoice without supplying or receiving any goods or services, a revised tax invoice was issued or received in which the same supply value was entered with a minus (-) sign to cancel the foregoing, whether the act of issuing or receiving the later revised tax invoice whose supply value is negative constitutes the crime prescribed in Article 10 (3) 1 of the former Punishment of Tax Offenses Act (negative)
Disposition
Partly reversed and remanded Stated in the decision
제1 원심판결 중 피고인 2에 대한 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 피고인 1의 상고를 기각한다.
Unofficial English translation
In the first judgment of the court below, the part concerning Defendant 2 is reversed, and this part of the case is remanded to the Seoul High Court. The appeal of Defendant 1 is dismissed.
Form of the test
Elements stated Stated in the decision
앞선 실물거래 없이 가공의 세금계산서를 발급·수취한 행위를 바로잡기 위한 방편에 불과하므로, 구 조세범 처벌법 제10조 제3항 제1호에서 정한 죄에 해당하지 않는다고 봄이 타당하다.
Unofficial English translation
it is merely a means of rectifying the preceding act of issuing or receiving a fabricated tax invoice without an actual transaction, and therefore it is reasonable to regard it as not constituting the crime prescribed in Article 10 (3) 1 of the former Punishment of Tax Offenses Act.
Factors
- 재화나 용역을 공급하지 아니하거나 공급받지 아니하고 가공의 세금계산서를 발급·수취한 후 이를 취소하는 의미에서 같은 공급가액에 음(-)의 표시를 하여 작성한 수정세금계산서를 발급·수취한 경우
- 뒤의 공급가액이 음수인 수정세금계산서를 발급·수취한 행위가 구 조세범 처벌법 제10조 제3항 제1호에서 정한 죄에 해당하는지 여부(소극)
- 이미 완성된 구 조세범 처벌법 제10조 제3항 제1호 범죄의 성립에 영향을 미치는지 여부(소극)
- 특정범죄 가중처벌 등에 관한 법률 제8조의2 제1항에 따라 가중처벌을 하기 위한 기준인 ‘공급가액 등의 합계액’을 산정할 때에 실물거래 없이 발급·수취한 가공의 세금계산서를 취소하는 의미에서 발급·수취한 음수의 수정세금계산서의 공급가액을 고려해야 하는지 여부(소극)
Unofficial English translation
• Where, after issuing or receiving a fabricated tax invoice without supplying or receiving any goods or services, a revised tax invoice was issued or received in which the same supply value was entered with a minus (-) sign to cancel the foregoing
• Whether the act of issuing or receiving the later revised tax invoice whose supply value is negative constitutes the crime prescribed in Article 10 (3) 1 of the former Punishment of Tax Offenses Act (negative)
• Whether it affects the establishment of the already completed crime under Article 10 (3) 1 of the former Punishment of Tax Offenses Act (negative)
• Whether, when calculating the 'total amount of supply values, etc.,' which is the criterion for imposing aggravated punishment under Article 8-2 (1) of the Act on the Aggravated Punishment of Specific Crimes, the supply value of the negative revised tax invoice issued or received for the purpose of canceling the fabricated tax invoice that was issued or received without an actual transaction must be taken into account (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2020. 10. 15. 선고 2018도17244 판결, 대법원 2020. 10. 15. 선고 2020도118 판결 참조
Unofficial English translation
See Supreme Court Decision 2018Do17244 decided October 15, 2020, Supreme Court Decision 2020Do118 decided October 15, 2020
Decisions referred to
[1] 대법원 2011. 9. 29. 선고 2009도3355 판결(공2011하, 2278), 대법원 2011. 9. 29. 선고 2011도4397 판결, 대법원 2013. 9. 26. 선고 2013도7219 판결 / [2] 대법원 2020. 10. 15. 선고 2018도17244 판결, 대법원 2020. 10. 15. 선고 2020도118 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If a negative amended invoice cancels only part of an earlier fictitious invoice, or its amount differs from it, how is the 'total supply amounts' computed for Article 8-2(1)?
The retrial judgment of the Seoul High Court as to Defendant 2, once it recuts the total without the negative invoices, will show how the threshold applies on these facts. Any amendment to Article 10(3) of the Tax Offences Punishment Act or Article 8-2(1) of the Aggravated Punishment of Certain Crimes Act also requires this entry to be read again.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgments of 24 July 2020 (2020No633, 2019No2591) and 7 August 2020 (2020No633), kept the first-instance judgment convicting Defendant 2 of issuing and receiving four fictitious VAT invoices with no real transaction. The first instance had held that a negative amended invoice issued with no real transaction may breach Article 10(3) of the former Tax Offences Punishment Act even where it corrects an invoice already issued or received, convicted Defendant 2 of all four, but totalled the supply amounts by deducting the negative amended invoice of KRW 2,472,546,650 rather than adding its absolute value, arriving at KRW 5,116,397,258.
Supreme Court standard: The Supreme Court held that the conduct of issuing the negative amended invoice of KRW 2,472,546,650 on about 15 January 2015, which cancelled the invoice of the same supply amount issued on about 2 January 2015, was not the offence in Article 10(3)(i), and that the court below had misread the law on the tax invoice under that provision and on the 'total supply amounts' under Article 8-2(1) of the Aggravated Punishment of Certain Crimes Act in a way that affected its judgment. Because that part stood in a comprehensive single offence relationship with the rest of the false VAT invoice charge, and because it was in a concurrence relationship under the main clause of Article 37 of the Criminal Act with the fraud charge under the Act on the Aggravated Punishment of Specific Economic Crimes, for which one sentence had been imposed, the whole of the judgment below as to Defendant 2 was reversed without examining the remaining grounds of appeal, and that part was remanded for retrial. On Defendant 1, the Court found no misreading of the law on deceptive conduct, fraudulent intent or joint offence, no breach of procedural statutes and no error departing from the rules of logic and experience, and dismissed the appeal.
Distinguishing conditions
- An amended invoice whose negative supply amount does not cancel an identified earlier fictitious invoice of the same supply amount, so that it cannot be treated as a mere corrective device.
- A tax invoice issued or received with no real transaction that is not followed by a negative amended invoice, since the offence is already complete and the total is counted on its own terms.
- Conduct governed by Article 10(3) of the Tax Offences Punishment Act as amended by Act No. 16108 of 31 December 2018, since the decision applied the pre-amendment version and did not decide on the amended provision.
Record verification notes
List each invoice with its date, supply amount and the earlier invoice it purports to cancel, and match each negative invoice against the prior fictitious invoice of the same amount before totalling. Then check which version of the Tax Offences Punishment Act governed the conduct date, and compare the total with the KRW 5 billion and KRW 3 billion thresholds in Article 8-2(1) of the Aggravated Punishment of Certain Crimes Act, because the count changes once the negative invoices are excluded.
From the official text
Points at issue
[1] 특정범죄 가중처벌 등에 관한 법률 제8조의2 제1항의 적용 기준(=구 조세범 처벌법 제10조 제3항의 죄가 성립하는 세금계산서, 매출·매입처별 세금계산서합계표 등에 기재된 공급가액을 모두 합산한 금액) [2] 재화나 용역을 공급하지 아니하거나 공급받지 아니하고 가공의 세금계산서를 발급·수취한 후 이를 취소하는 의미에서 같은 공급가액에 음(-)의 표시를 하여 작성한 수정세금계산서를 발급·수취한 경우, 뒤의 공급가액이 음수인 수정세금계산서를 발급·수취한 행위가 구 조세범 처벌법 제10조 제3항 제1호에서 정한 죄에 해당하는지 여부(소극) 및 가공의 세금계산서를 취소하는 취지로 음수의 수정세금계산서를 발급·수취한 경우 이미 완성된 구 조세범 처벌법 제10조 제3항 제1호 범죄의 성립에 영향을 미치는지 여부(소극) / 특정범죄 가중처벌 등에 관한 법률 제8조의2 제1항에 따라 가중처벌을 하기 위한 기준인 ‘공급가액 등의 합계액’을 산정할 때에 실물거래 없이 발급·수취한 가공의 세금계산서를 취소하는 의미에서 발급·수취한 음수의 수정세금계산서의 공급가액을 고려해야 하는지 여부(소극)
Unofficial English translation
[1] Criteria for the application of Article 8-2 (1) of the Act on the Aggravated Punishment of Specific Crimes (= the amount obtained by adding together all the supply values stated in tax invoices and the summary statement of tax invoices by sales and purchase counterparty, etc., which constitute the crime under Article 10 (3) of the former Punishment of Tax Offenses Act) [2] Where, after issuing or receiving a fabricated tax invoice without supplying or receiving any goods or services, a revised tax invoice was issued or received in which the same supply value was entered with a minus (-) sign to cancel the foregoing, whether the act of issuing or receiving the later revised tax invoice whose supply value is negative constitutes the crime prescribed in Article 10 (3) 1 of the former Punishment of Tax Offenses Act (negative), and whether the issuing or receiving of a revised tax invoice with a negative supply value for the purpose of canceling the fabricated tax invoice affects the establishment of the already completed crime under Article 10 (3) 1 of the former Punishment of Tax Offenses Act (negative) / Whether, when calculating the 'total amount of supply values, etc.,' which is the criterion for imposing aggravated punishment under Article 8-2 (1) of the Act on the Aggravated Punishment of Specific Crimes, the supply value of the negative revised tax invoice issued or received for the purpose of canceling the fabricated tax invoice that was issued or received without an actual transaction must be taken into account (negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
제1 원심판결 중 피고인 2에 대한 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 피고인 1의 상고를 기각한다.
Unofficial English translation
In the first judgment of the court below, the part concerning Defendant 2 is reversed, and this part of the case is remanded to the Seoul High Court. The appeal of Defendant 1 is dismissed.
Provisions referred to
[1] 구 조세범 처벌법(2018. 12. 31. 법률 제16108호로 개정되기 전의 것) 제10조 제3항 제1호, 특정범죄 가중처벌 등에 관한 법률 제8조의2 제1항 [2] 구 조세범 처벌법(2018. 12. 31. 법률 제16108호로 개정되기 전의 것) 제10조 제3항 제1호, 특정범죄 가중처벌 등에 관한 법률 제8조의2 제1항
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