실물거래 없는 세금계산서의 수수로 인한 조세범 처벌법 위반죄의 성부

Article 10(3)1 of the Punishment of Tax Evaders Act (hereinafter “Act”) is often understood as a regulation to punish fraudulent tax invoice traders. However, Supreme Court precedents do not confine the applicability of the said provision to forging tax invoices but encompass all activities related to issuing/receiving a tax invoice different from actual transaction. Accordingly, in cases of sham transaction, borrowed-name transaction, behest-acquisition transaction, etc., the issue is what to regard as an actual transaction and whether to issue/receive a tax invoice therefrom. In practice, there exist legal debates regarding gray area issues. Also, following Supreme Court en banc Decision 2008Du8499 Decided January 19, 2012, Korean courts have taken an eclectic approach and applied the economic substance doctrine. Therefore, a competent tax authority, from an economic substance standpoint, may reconfigure a transaction structure under the tax law albeit the parties in a transaction having formed a structure prescribed by the civil law. This, in turn, raises the question of whether the parties to whom the tax invoice is issued and from whom it is received become the subject of reconfiguration of transaction structure. In that sense, this paper examines how to determine the parties subject to issuance/receipt of a tax invoice by individual case pertaining to the violation of Article 10(3)1 of the Act.