[법인세부과처분취소·특별부과세등부과처분취소][집30(3)특,274;공1983.1.15.(696)100]
(a) Whether a non-profit domestic corporation is subject to the special surtax of corporate tax in case where the transfer margin accruing from the transfer of land, etc. does not fall under the income accrued from profit-making or income under each subparagraph of Article 1 (1) of the Corporate Tax
(b) Whether transfer marginal profits accruing from the transfer of forest land not used by a school foundation for school education is subject to the special surtax of the corporate tax (limited to the former law);
(a) Where corporations other than the State and local governments transfer land, etc. in particular, the special surtax shall be imposed on the transfer margin separately from the corporate tax. In this case, even if the transfer margin accruing from the transfer of land, etc. by a non-profit domestic corporation does not fall under the income accrued from profit-making business or income under each subparagraph of Article 1(1) proviso of the Corporate Tax Act and does not fall under the income of the corporation for each business year, the transfer margin shall be subject to the special surtax on its own initiative except
B. Transfer margin accruing from the transfer of forest land, which is the basic property for profit, not directly used for school education under Article 12 of the Enforcement Decree of the Private School Act, by a school foundation established under the Private School Act, shall be subject to the corporate tax special surtax pursuant to Article 59-3 (12) of the former Corporate Tax Act and Article 59-3 (12) of the former Corporate Tax Act.
A. Article 1(1) proviso of the Corporate Tax Act (amended by Act No. 3099 of Dec. 5, 1978)
Attorney Lee Jae-woo, Counsel for the defendant-appellant of the school foundation
Head of Tax Office
Daegu High Court Decision 80Gu24 delivered on July 29, 1980
The judgment below is reversed, and the case is remanded to the Daegu High Court.
The grounds of appeal Nos. 1 and 2 of the defendant litigation performer are also examined.
Under the reasoning of the judgment, the court below acknowledged that the Plaintiff’s act of purchasing and selling 604 forest land under the judgment of the court below as a school juristic person on February 24, 1978 (hereinafter “the forest land of this case”) was a sale of 43,879,40 won of the forest land as indicated above, and that the Defendant’s profit was 29,587,758 won due to the transfer of the forest land of this case, and that the Plaintiff’s act of selling and purchasing 10,367,821 won and 1,777,201 won as tax base for the above transfer gains under the provisions of Article 59-2 of the Corporate Tax Act should be deemed to be unlawful for the Plaintiff to be subject to corporate tax or special taxation for the purpose of its establishment and sale of 10,000 won of the forest land of this case. The Plaintiff’s acquisition and sale of 10,000 won of the forest land of this case should be deemed to be subject to corporate tax base for the land, etc.
However, according to the provisions of the proviso of subparagraph 1, 2, and 1 to 3 of the Enforcement Decree of the Corporate Tax Act, the tax base of the corporation shall be determined by the transfer income tax on the income generated by the transfer of the corporation to 10, 35, 713 won, and the tax base of the corporation shall be determined by the Presidential Decree No. 9 of the Corporate Tax Act (including the corporate tax on the income generated by the transfer of the corporation under the provisions of subparagraph 2 of Article 9 of the Corporate Tax Act) with the exception of the total amount of income generated by the transfer of the corporation under the provisions of subparagraph 1 to 3 of the same Article, and the special surtax shall be imposed on the income generated by the transfer of the corporation under the provisions of subparagraph 2 of the same Article except for the cases of non-profit corporation under the provisions of subparagraph 1 to 4 of the same Article, and the special surtax shall be imposed on the income generated by the corporation under the provisions of the same Article 9 of the Corporate Tax Act, which shall be imposed on the income generated by the corporation under the provisions of each subparagraph 2 of the same Article.
According to the records of this case, the forest of this case is the basic property for profit of the plaintiff corporation, which can be seen as not falling under the property established and directly used for school education operated by the school foundation under Article 12 of the Enforcement Decree of the Private School Act, and the court below determined that the transfer margin from the transfer of the forest of this case cannot be subject to corporate tax special surtax because the transfer margin from the transfer of the forest of this case does not fall under any of the profit-making businesses stipulated in each subparagraph of Article 1 (1) of the Corporate Tax Act. Thus, the court below erred in the misapprehension of legal principles as to corporate tax special surtax, which affected the conclusion of the judgment, and the judgment of the court below should not be reversed.
Therefore, the judgment of the court below is reversed, and the case is remanded to the Daegu High Court, Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices.
Justices O Sung-sung(Presiding Justice)