[법인특별부가세부과처분취소][공1994.9.1.(975),2242]
(a) Requirements for the exemption of special surtax on any income accruing from the transfer of land, etc. by a school foundation;
B. Whether Article 67-3(4) of the former Regulation of Tax Reduction and Exemption Act and Article 55-3(4) of the Enforcement Decree of the same Act are unconstitutional
(a) Where a school foundation established under the Private School Act intends to be exempted from the special surtax on any income accruing from the transfer of land, etc. acquired before December 31, 1985 in order to acquire other profit-making property, it shall submit an application for exemption from the special surtax within the reporting period of the tax base and the tax amount provided for in Article 26 of the Corporate Tax Act, and the special surtax shall not be
B. Article 67-3 (4) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993) and Article 55-3 (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14084 of Dec. 31, 1993) shall not be deemed to violate the Constitution of the Republic of Korea concerning the guarantee of equality.
Article 67-3(1)2 of the former Regulation of Tax Reduction and Exemption Act, Article 67-3(4) of the former Regulation of Tax Reduction and Exemption Act, Article 73(1)2 and (4) of the Regulation of Tax Reduction and Exemption Act, Article 55-3(4) of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act, Article 11(1) of the Constitution
A. Supreme Court Decision 88Nu10794 delivered on July 25, 1989 (Gong1989, 1308), 89Nu7351 delivered on April 27, 1990 (Gong1990, 1185), 90Nu542 delivered on September 25, 199 (Gong190, 2202), 93Nu1177 delivered on January 25, 1994 (Gong194, 851)
Attorney Kim Jong-sik, Counsel for the defendant-appellant of a school foundation
Daejeon director of the tax office
Daejeon High Court Decision 92Gu457 delivered on April 2, 1993
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal by the Plaintiff’s attorney.
Article 67-3 (1) 2 of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 4666 of Dec. 31, 1993; hereinafter the same) provides that a school foundation established under the Private School Act shall be exempted from special surtax under the conditions as prescribed by the Presidential Decree for income accruing from the transfer of land, etc. acquired before December 31, 1985 in order to acquire other profit-making properties, and Article 67-3 (4) of the same Act provides that the exemption from special surtax under paragraph (1) shall apply only to cases where it submits the tax amount to be exempted under the conditions as prescribed by the Presidential Decree. Article 55-3 (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14084 of Dec. 31, 1993; hereinafter the same shall apply) upon delegation shall submit an application for exemption from special surtax along with its tax base return for the business year to which the date of transfer belongs, and a school foundation established under the Private School Act shall not be exempted from special surtax.
The judgment of the court below to the same purport is just, and it cannot be deemed that there is an error of law by misunderstanding the legal principles such as theory of lawsuit, and Article 67-3 (4) of the Regulation of Tax Reduction and Exemption Act and Article 55-3 (4) of the Enforcement Decree of the same Act do not constitute a violation of the constitutional provisions concerning the guarantee of equality, like theory of lawsuit.
Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Sung-sung (Presiding Justice)