2. The costs of the lawsuit are assessed against the defendant.

A. On November 28, 2002, the Plaintiff is a foreign-invested corporation established for the purpose of developing, manufacturing, processing, and selling liquid glass plates.

B. At the time of January 21, 2005, pursuant to Article 121-2 (1) 2 of the former Restriction of Special Taxation Act (amended by Act No. 7428 of Mar. 31, 2005, hereinafter the same), the Plaintiff received a decision on tax reduction or exemption (hereinafter referred to as "foreign investment tax reduction or exemption") that reduces the amount of tax reduction or exemption for five years from the date of commencing the taxable year in which the first income was generated from the pertinent business, and for two years thereafter, 50% from the date of commencing the taxable year in which the first income was generated from the relevant business. The Plaintiff was not subject to corporate tax reduction or exemption due to the occurrence of losses until the 2008 business year, and became simultaneously subject to the temporary tax credit and special tax credit for employment increase under the former Restriction of Special Taxation Act (hereinafter collectively referred to as "temporary tax credit, etc.").

C. When the Plaintiff reported and paid corporate tax for the business year 2009 to the Defendant, the Plaintiff was exempted from corporate tax by preferentially applying the reduction and exemption of foreign investment tax amount to the calculated tax amount.

D. However, unlike the Plaintiff’s order of tax reduction and exemption, the Defendant first applied the temporary tax credit to which the minimum tax is applied in the calculated tax amount, and subsequently notified the Plaintiff on May 6, 201 by applying the tax reduction and exemption for foreign investment, which does not apply to the minimum tax (including the additional tax) to the Plaintiff on May 6, 201 (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on December 5, 201.

The above claim was dismissed.

[Ground of Recognition] The non-contentious facts, Gap evidence Nos. 1 through 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion (1)

In calculating corporate tax, where both tax reduction and tax credit are applied simultaneously, the tax credit should be applied first, unless otherwise prescribed by Article 59(1) of the former Corporate Tax Act. In addition, Article 132(1) of the former Restriction of Special Taxation Act merely provides for the method of calculating the limit of the amount of tax credit and tax credit subject to the minimum tax, rather than setting the order of application of tax credit and tax credit and tax credit, it does not constitute a separate provision of Article 59(1) of the former Corporate Tax Act, which is an exception to the order of tax credit and tax credit under Article 59(1) of the former Corporate Tax Act. Nevertheless, it is unlawful for the Defendant to consider Article 132(1) of the former Restriction of Special Taxation Act as the "Regulation on Special Cases of Tax Credit under Article 59(1) of the former Corporate Tax Act concerning the order of tax credit and tax reduction and exemption"

(2) The defendant's assertion

The reduction or exemption of foreign investment tax is "tax reduction or exemption that is not subject to the minimum tax", and the temporary investment tax deduction, etc. is "tax reduction or exemption that is subject to the minimum tax". In addition, the minimum tax provision of Article 132 (1) of the former Restriction of Special Taxation Act is to calculate corporate tax by applying "tax reduction or exemption that is subject to the minimum tax" in the pre-application of "tax reduction or exemption that is not subject to the minimum tax on income for each business year of domestic corporations, etc." and the special provision of Article 59 (1) of the former Tax Act that sets the order of deduction or exemption. Therefore, the disposition of this case applying the reduction or exemption of foreign investment tax that is not subject to the minimum tax after first applying the temporary tax credit, etc. subject to the minimum

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The key issue of the instant case is the order of application in cases where the temporary investment tax credit, etc. to which the minimum tax provision under Article 132(1) of the former Restriction of Special Taxation Act applies, and the foreign investment tax reduction or exemption that is not applicable to the said city

(2) Therefore, it is reasonable to view that the above provision should be applied in preference to the tax credit for temporary investment under Article 59(1) of the former Corporate Tax Act, by comprehensively taking into account the health conditions and the following circumstances with respect to the order of application of the above provision on deduction and exemption, and the minimum tax provision under Article 132(1) of the former Restriction of Special Taxation Act.

(가) 구 법인세법 제59조 제1항에 의하면， 법인세의 감면에 관한 규정과 세액공제에 관한 규정이 동시에 적용되는 경우 그 적용은 별도의 규정이 있는 경우를 제외하고는 '㉠ 각 사업연도의 소득에 대한 세액감면，㉡ 이월공제가 인정되지 아니하는 세액공제，㉢ 이윌공제가 인정되는 세액공제' 순서로 적용하여야 한다. 그런데 외국인투자세액감 면은 구 법인세법 제59조 제1항 제1호 소정의 '㉠ 각 사업연도의 소득에 대한 세액감 면'에 해당하고， 임시투자세액공제등은 구 법인세법 제59조 제1항 제3호 소정의 '㉢ 이윌공제가 인정되는 세액공제'에 해당한다. 그러므로 법인세법 및 다른 법률에서 그 적용순위에 관한 '별도의 규정'이 없는 이상 외국인투자세액감면이 임시투자세액공제등보 다 먼저 적용되어야 한다.

(B) Article 132(1) of the former Restriction of Special Taxation Act and Article 126(2) of the Enforcement Decree of the same Act provide that in calculating corporate tax on income for each business year, the remaining tax amount shall not be reduced or exempted if the remaining tax amount is below the minimum tax after calculating the tax amount calculated without 'reduction or exemption, etc. to which the minimum tax is applied'. However, in light of the following circumstances, it is difficult to view the minimum tax under Article 132 of the former Restriction of Special Taxation Act as 'a separate limit prescribed by Article 59(1) of the former Corporate Tax Act as an exception to the order of deduction or exemption under Article 59(1) of the former Corporate Tax Act.

① The former Enforcement Decree of the Restriction of Special Taxation only prescribes the method of determining the ‘limit of reduction or exemption, etc. to which the minimum tax is to be applied’, and does not directly express the order of application with the reduction or exemption to which the minimum tax is not applied.

② Article 132(1) of the former Restriction of Special Taxation Act provides that "a reduction or exemption, etc. which is not subject to the minimum tax," rather than setting the order of application of the calculation of the amount of tax, and "a reduction or exemption, etc. which is subject to the minimum tax," in case of calculating the amount of tax, shall be made twice the amount of tax. Therefore, it is natural that "a reduction or exemption, etc. which is subject to the minimum tax, etc." should not be calculated, and it seems that it only prescribes whether "a reduction or exemption, etc. which is not subject to the minimum tax" should be applied without separately

③ As in the instant case, there is no change in the amount of the carried-over deduction depending on the difference in the order of application of reduction, exemption, etc., and the minimum tax calculated under Article 132(1) of the former Restriction of Special Taxation Act, and it is difficult to view that the order of application of reduction, exemption, etc. related to the calculation of the minimum tax under the said provision

④ Article 126(4) of the Enforcement Decree of the Restriction of Special Taxation Act sets the order of exclusion within the scope of "where corporate tax reported by a taxpayer falls short of the minimum tax amount of corporate tax and is corrected, etc., it shall be subject to the minimum tax."

(C) The Defendant, on the ground that “minimum tax is subject to reduction and exemption, etc.” should first be applied, provides the following guidelines: Article 82(1)3 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 497, Mar. 14, 2006); Article 82(1)4 of the same Enforcement Rule (amended by Ordinance of the Ministry of Finance and Economy); and Article 82(4) of the same Enforcement Rule (amended by Presidential Decree No. 497, Mar. 14, 2006); and Article 82(1)4 of the former Enforcement Rule of the Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy); however, this is merely a provision of administrative procedures necessary for reporting and paying corporate tax

(D) Article 132(3) of the current Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010) provides that the minimum tax shall be applied at the same time when both reduction, exemption, and other reductions, etc. are applied. However, in light of the principle of no taxation without law, the above provision is not a provision confirming the order of reduction and exemption under Article 59(1) of the former Corporate Tax Act and Article 132(1) of the former Restriction of Special Taxation Act, but a provision newly establishing an exception to the order of reduction and exemption under Article 59 subparag. 1 of the former Corporate Tax Act. Therefore, the business year of the special tax for rural development and the pertinent provision newly established after the instant disposition cannot be applied to the instant disposition.

(3) Therefore, the instant disposition, which corrected the increase in the amount of special rural development tax for the business year belonging to the Plaintiff, by applying the temporary tax credit, etc. for investment than the tax reduction and exemption for foreign investment, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.