2. The costs of appeal shall be borne by the Plaintiff.

The following facts are not disputed between the parties:

A. On July 16, 1998, the Plaintiff was approved by the head of the Gu of Busan Metropolitan City as the business entity from the head of the Gu with the Plaintiff himself as the business entity. On September 16, 1998, the Plaintiff was approved by the construction project plan of 2 Dong-dong 122 households with the size of 9 to 15 stories on the ground (number 1 omitted). On September 10, 2002, the Plaintiff was designated as the business entity and the Plaintiff and wall mountain Development Co., Ltd. (hereinafter “Co., Ltd.”) as the joint executor with the Plaintiff and the wall mountain Development Co., Ltd. (hereinafter “Co. Development”) as the joint executor, the Plaintiff constructed the apartment of 16 to 25 stories on the ground (number 2 omitted) with the total project cost of 84.3 billion won on the above site for the project, and completed the safety inspection on December 18, 202.

B. On March 29, 2003, the Plaintiff filed an application for special reduction and exemption of 474,329,458 won with the Defendant, pursuant to Article 7 of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 20035, Feb. 29, 2003; Presidential Decree Article 6(5) of the Enforcement Decree of the Act and Article 7 of the former Enforcement Decree of the Act, which provides for tax reduction

C. On June 11, 2003, the Defendant imposed corporate tax amounting to KRW 484,574,970 (including additional tax) on the Plaintiff on June 11, 2003, on the ground that the Plaintiff actually constructed the said apartment by contract with another construction company, such as brick development, and thus, it did not fall under “real estate supply business.” (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

(1) Article 2(3) of the Act provides that the Korean Standard Industrial Classification shall govern the classification of types of business under the Act. The Korean Standard Industrial Classification provides that the specific scope and contents of " apartment construction business" and "real estate supply business" which are not subject to reduction and exemption shall be comprehensive and abstract without presenting specific and clear distinction standards between the two types of business. This is against the principle of clear taxation requirement that the provisions of law or orders, regulations, etc. upon delegation shall be a sole and clear manner. Thus, the announcement portion of the Korean Standard Industrial Classification which sets the scope of " apartment construction business" and "real estate supply business" in the Korean Standard Industrial Classification shall be null and void, and accordingly, the disposition of this case is unlawful.

(2) Article 2(3) of the Act provides that "Except as otherwise provided in this Act, it shall be governed by the Korean Standard Industrial Classification publicly announced by the Commissioner of the National Statistical Office pursuant to Article 17 of the Statistics Act." Here, "the term" in this context shall also be deemed as referring to the harmonious interpretation of the Income Tax Act with Article 3(1) of the Act. Under the Income Tax Act and the Act and subordinate statutes, it shall also be deemed as one of the construction business as a housing construction and sales business even when a housing construction is awarded and sold by a

(3) 한국표준산업분류에 의한다고 하더라도, 원고는 벽산개발과 더불어 공동시공자로서 토목공사, 기부채납공사, 토목관련 사업승인 조건부 공사, 전력·상수도·도시가스 등 각종 인입공사 등을 원고의 책임과 계산하에 수행하면서 다만 관련 법령에 의하여 토목 관련 공사를 전문건설업체에 도급 주었을 뿐이고, 또한 원고가 직접 위 아파트 부지의 평탄화 작업에 관련된 토목공사, 알루미늄 샷시공사를 시공하는 외에 건설폐자재 처리비 등 잡공사비로 3,023,860,037원을 지출하는 등 실제적으로 공동시공자로서 위 아파트 건설공사를 수행하였으므로, 원고는 건설업을 영위한 것으로서 감면대상이 된다.

(4) Even if the Plaintiff was engaged in the “real estate supply business” under the Korean Standard Industrial Classification, in the event that the Plaintiff directly sells the relevant apartment construction business after being entrusted or subcontracted to another construction business, the remaining construction expenses, excluding the total construction expenses entrusted or contracted to another construction business entity, constitute the expenses incurred by apartment construction business. Therefore, among the total construction expenses, the amount of tax reduction or exemption for the total construction expenses, the portion equivalent to the remainder construction expenses, excluding the amount entrusted or contracted to another construction business entity, among the total construction expenses, shall

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the assertion that the notice section setting forth the scope of “ apartment construction business” and “real estate supply business” among the Korean Standard Industrial Classification is invalid

However, Article 7(1) of the Act excludes the scope of small and medium enterprises eligible for special tax reduction and exemption, such as corporate tax, “manufacturing business, mining business, construction business, transportation business, fishery business, wholesale business, etc.” under Article 2(3) and delegates specific types of business to the Korean Standard Industrial Classification publicly notified by the Commissioner of the Statistics Korea. The Korean Standard Industrial Classification combines and defines “construction business” as one of “multi-family construction business (45212)” under “multi-family construction business (455)” and excludes “industrial activities that build apartment housing” under the definition of “multi-family construction business (4521),” and directly sell housing after entrusting another construction business (7012; real estate supply business). In other words, “real estate supply business (7012)” includes “real estate business” under the definition and definition of “real estate supply business (70)” as “real estate business (70) and the definition of “real estate supply business” under the definition of “real estate business (70) and housing site, etc.” under the definition and sale and sale business.

As can be seen, the Korean Standard Industrial Classification classifys "a case where a building, etc. constructed by entrusting another construction business to or by contracting to another person is sold in lots" as "real estate supply business," not "multi-family construction business," and the concept of "entrustment" or "contract" in the contents of the provision constitutes basic legal terms, and thus, it cannot be determined whether the concept is included in the concept depending on specific circumstances at the time of dispute occurrence. In addition, even in a case where the directly constructed part and the part directly constructed are mixed with that entrusted to or contracting to another construction business, it cannot be said that it is difficult to determine whether the notified part of "multi-family construction business" and "real estate supply business" in the Korean Standard Industrial Classification violates the principle of clarity of taxation requirements.

(2) As to the assertion that “the” under Article 2(3) of the Act includes the income tax tax in the territory of this Act

In light of the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted as the law, barring any special circumstances, and it shall not be permitted to expand or analogically interpret it without reasonable grounds, and in particular, it shall conform to the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for reduction and exemption (see Supreme Court Decision 2002Du9537, Jan. 24, 2003, etc.).

In light of the above legal principles, the term "this Act" under Article 2 (3) of the Act is obvious to refer only to the Restriction of Special Taxation Act, and there is no other ground to regard it as referring also to the Income Tax Act.

(3) As to the Plaintiff’s assertion that “construction business” is conducted

(A) Facts of recognition

갑2호증의 2, 갑3호증의 19, 갑5호증의 1 내지 6의 각 기재에 변론 전체의 취지를 종합하면, 원고는 2000. 5. 23. 공동시공자인 벽산개발에게 위 아파트 신축공사를 공사대금 424억 5,000만원(상가 및 전용면적 85㎡ 이상의 주택분은 부가가치세 별도)에 도급하면서, 토목공사, 기부채납공사, 토목 관련 사업승인 조건부 공사 및 전력·상수도·도시가스 등 각종 인입공사 부분은 도급공사의 범위에서 제외한 사실, 또한 원고는 2000. 8. 16. 동남건설 주식회사(이하 ‘동남건설’이라 한다)에게 구조물·토공·진입로·포장공사 등 토목 관련 공사 일체를 공사대금 25억원(부가가치세 포함)에 도급하였다가, 2001. 6. 12. 공사대금을 37억 8,000만원(부가가치세 포함)으로 증액 변경하였고, 2001. 8. 20. 삼지건설 주식회사(이하 ‘삼지건설’이라 한다)에게 토목철근콘크리트공사를 공사대금 10억 2,000만원(부가가치세 별도)에 도급한 사실, 원고는 위 아파트 부지를 매입하여 평탄작업을 한 다음, 위와 같이 다른 건설회사에게 위 아파트 신축공사를 도급하는 외에 위 아파트의 준공 후 약 330,000,000원의 비용을 들여 직접 알루미늄 샷시공사를 하고, 위 아파트 신축공사와 관련하여 건설폐자재 처리비 등 잡공사비로 3,023,860,037원을 지출한 사실이 각 인정된다.

(B) In light of the provisions and legal principles as seen earlier, a small and medium enterprise that runs apartment construction business (45212) should engage in an industrial activity that constructs apartment units in order to be subject to corporate tax reduction and exemption, and in the case where apartment units are constructed or sold after being entrusted or subcontracted to another construction business, an apartment building supply business (7012) rather than an apartment construction business should be deemed to be run. In the case where a seller of apartment units supplies apartment units by directly constructing a part of the construction work, the degree of the apartment units' direct construction should be deemed to have been reduced and exempted, taking into account the degree of the apartment unit's participation in the entire construction work, the degree of the apartment unit's participation in the whole construction work, the circumstances leading up to the sale of the apartment units, the parties' intent, etc., as a whole.

이 사건에서 보건대, 앞서 본 바와 같이, 원고는 사업계획상으로는 벽산개발과 공동시공자로 되어 있긴 하지만, 일부 공사를 제외한 대부분의 공정을 국내 유명 건설회사인 벽산개발이 시공한 점, 동남건설이나 삼지건설에 도급한 공사도 단순히 원고를 보조하는 정도가 아니라 해당 공사 전체를 도급한 것인 점, 원고가 직접 시공하였다는 부지 평탄작업이나 샷시공사, 건설폐자재처리 등도 공사의 일부로 볼 수 있긴 하지만 이러한 공사가 위 아파트 신축공사의 전체 공정(총 사업비 843억원)에서 차지하는 비중이 그다지 크다고 할 수 없어 그것만으로 원고가 실질적으로 위 아파트를 건설하였다고 보기는 어려운 점 등의 사정을 종합해 보면, 위 아파트의 건설과 관련한 원고의 주된 사업목적은 위 아파트의 건설 그 자체에 있다기보다는 브랜드가치가 높은 벽산건설을 통하여 이 사건 아파트를 시공한 다음 원고와 벽산건설의 이름으로 타에 분양함으로써 소득을 얻는 데 있다고 보여지므로, 원고가 그 주장과 같이 직접 시공한 공사부분이 있다 하더라도 그가 영위한 업종은 ‘아파트 건설업’이 아닌 ‘부동산 공급업’으로 봄이 상당하다.

(4) As to the assertion that the portion corresponding to the remainder construction cost, excluding the amount entrusted or contracted to other construction companies, shall be subject to reduction and exemption.

In light of the above provisions, Article 7 (1) of the Act provides that "small and medium enterprises engaged in manufacturing, mining, construction, and business shall be exempted from income tax or corporate tax, corporate tax, and amount equivalent to the income accrued from the business in question, for small and medium enterprises engaged in the construction business." According to the above provision, income tax or corporate tax shall be reduced or exempted for small and medium enterprises engaged in the construction business within a certain scope. This is to obtain income from the sale of apartment constructed by another construction enterprise rather than for the purpose of obtaining income from the construction of part of the construction construction constructed by the plaintiff's business purpose in relation to the construction of the apartment in question. Considering the fact that the plaintiff's business purpose in relation to the construction of the apartment in question is to acquire income from the sale of the apartment completed by another construction enterprise rather than for the purpose of gaining income from the construction of the apartment in itself, as seen earlier, the income accrued in relation to the construction of the apartment in question shall be excluded from the whole reduction or exemption regardless of whether the plaintiff directly constructed part of

(5) Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-dae (Presiding Judge)