가공(架空)의 세금계산서에 관한 법적 고찰 – 판례를 중심으로 –

Abstract

A tax invoice issued or received without the supply of goods and service is called a fictitious tax invoice, and the trade of receiving such a fictitious tax invoice is called a fictitious transaction. Whether it is a fictitious transaction or a actual transaction is determined by the existence of a contract to supply goods and service between the parties receiving the tax invoice. If there is an actual transaction at least partially, it does not constitute a fictitious transaction. A typical method of fictitious transactions is when a tax invoice is received through a transaction with a so-called tax invoice dealer. A tax invoice dealer refers to a person who makes it his business to issue fictitious tax invoices in exchange for compensation without supplying goods and service. However a fictitious transaction can be established even if a tax invoice is received from a person other than tax invoice dealer without a actual transaction. In the case of tax evasion through fictitious transactions, it constitutes a crime of violation of the obligation to issue a tax invoice and a crime of tax evasion under Punishment of Tax Evaders Act and both crimes are substantive as separate crimes. The Act on the Aggravated Punishment of Specific Crimes provides for aggravated punishment for fictitious transactions in which the total supply price exceeds a certain amount for the purpose of profit. Considering that the legislative purpose of defining ‘profit purpose’ is to severely punish tax invoice dealer, the legal requirements of ‘profit purpose’ is changed to ‘for business’ or ‘receive compensation’. In addition, the current Act does not limit the period for calculating the ‘total amount of supply price’, but in order to solve problems such as excessive expansion of the scope of punishment, it must be revised to change the period for calculating the total amount of supply price to ‘annual’ or ‘taxation period’.