(영문) 대구고등법원 1977. 9. 8. 선고 76구181 판결[방위세부과처분취소][판례집불게재]
Ulsan-gun Agricultural Cooperatives (Attorney Choi Jong-soo, Counsel for the plaintiff-appellant)
Head of Ulsan District Office
August 25, 197
The tax assessment of KRW 1,573,700 and penalty tax of KRW 314,740 imposed by the Defendant against the Plaintiff as of March 16, 1976 shall be revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
On February 25, 1976, the Plaintiff paid 3,385,376 won as the corporate tax base calculated by applying the tax rate under Article 22(4) of the Corporate Tax Act to KRW 63,98,454 of the net profit of the Plaintiff Union for the year 1975, by voluntarily paying 3,385,376 won, which is calculated according to the tax rate under Article 4(3) of the Defense Tax Act. On March 16, 1976, the Defendant cannot be deemed as a non-profit corporation in calculating the corporate tax amount, which is the tax base of the Plaintiff’s voluntary payment defense tax, as it is difficult to view the Plaintiff’s association as a non-profit corporation in calculating the corporate tax amount, which is the tax base of the said voluntary payment defense tax, on March 16, 1976. However, the tax rate under Article 22(1) of the Corporate Tax Act was calculated by applying the tax rate under Article 22(1) of the same Act to this tax rate, and calculated the corporate tax rate of KRW 4,959,279,7130,7
The plaintiff is a non-profit corporation, and the tax base of corporate tax should be calculated by applying the tax rate under Article 22 (4) of the Corporate Tax Act. However, the defendant asserted that the defendant calculated the corporate tax by applying the tax rate under Article 22 (1) of the same Act and additionally imposed the tax base of the defense tax, which is illegal. In calculating the defense tax base, the defendant argues that the defendant is not a non-profit corporation, and the tax base of the defense tax is legitimate.
Therefore, as to whether the Plaintiff’s association constitutes a non-profit domestic corporation under Article 22(4) of the Corporate Tax Act, there is no dispute between the parties. According to Article 1 of the Corporate Tax Act, a non-profit domestic corporation refers to a domestic corporation, which is established under Article 32 of the Civil Act or Article 10 of the Private School Act, and a corporation established under other special Acts, which has the purpose of establishment similar to a corporation under Article 32 of the Civil Act. According to Article 1 of the Agricultural Cooperatives Act, the purpose of the Agricultural Cooperatives Act is to promote the balanced development of the national economy by promoting the promotion of agricultural productivity and the improvement of the economic and social status of farmers through voluntary cooperative organizations of farmers. According to Article 5(2) of the same Act, the agricultural cooperative shall not engage in a business for profit, or speculation. According to Article 99 of the same Act, if the Plaintiff’s association intends to establish a non-profit domestic corporation, a non-profit domestic corporation and a corporation established under Article 32 of the Civil Act, with the establishment purpose of its incorporation prepared by the general meeting and approved by the competent Minister.
Therefore, in imposing the defense tax on the plaintiff union, even though the corporate tax amount calculated by applying the tax rate under Article 22(4) of the Corporate Tax Act to the tax rate shall be the defense tax base, the defendant shall regard the plaintiff union as a profit-making corporation and the corporate tax amount calculated by applying the tax rate under Article 22(1) of the Corporate Tax Act to be the defense tax base and the disposition imposing the tax shall be deemed to be unlawful. Thus, the plaintiff's objection claim seeking cancellation on the premise that the disposition of this case is illegal is reasonable, and it is so decided as per Disposition by the application of Article 14 of the Administrative Litigation Act and Article 89 of the Civil Procedure Act.
September 8, 197
Judge Lee Jong-soo (Presiding Judge)