주택신축판매업은 구 조세특례제한법상 중소기업특별세액 감면대상이 되는 건설업에 해당하지 않음[국승]
Suwon District Court-2018-Guhap64680 (Law No. 2018.20, 2018)
The Housing Construction and Sales Business Act does not constitute a construction business subject to reduction and exemption of special tax on small and medium enterprises under the former Restriction of Special Taxation Act
Housing construction and sales business is a residential building development and supply business under the Korean Standard Industrial Classification, and does not fall under a construction business subject to the reduction or exemption of special tax amount for small and medium enterprises under the former
Article 7 of the Restriction of Special Taxation Act for Small and Medium Enterprises
2018Nu6892 global income and revocation of disposition
Jung-○ et al.
○ Head of Tax Office and four others
Suwon District Court Decision 2018Guhap64680 Decided September 20, 2018
July 17, 2019
September 4, 2019
1. All appeals filed by the plaintiffs are dismissed.
2. The costs of appeal are assessed against the Plaintiffs.
The judgment of the first instance court is revoked. The disposition of imposition of each global income tax on July 3, 2017 by the Defendants to the Plaintiffs on July 3, 2017 shall be revoked.
1. Quotation of judgment of the first instance;
The reasoning for the judgment of the court in this case is as stated in the reasoning for the judgment of the court of first instance except for the parts added or written by the following. Thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
○ The following shall be added at the 6th day below the judgment of the first instance court:
3) Since the Plaintiffs engaged in the housing construction and sales business as a construction business, at least the special tax reduction or exemption under Article 7 of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015; hereinafter the same) shall apply.
In the judgment of the first instance court, the "Income Tax Act" shall be deemed to be the "former Income Tax Act (amended by Act No. 16104, Dec. 31, 2018; hereinafter the "former Income Tax Act")", and the "Income Tax Act of 8th and 7th shall be deemed to be the "former Income Tax Act", respectively.
The "Enforcement Decree of the Income Tax Act" shall be added to the "Enforcement Decree of the Income Tax Act" of the first instance court at the bottom of the 8th judgment.
○ It shall be written by inserting from 9th judgment of the first instance to 5th "applicable".
○ The following shall be added at least 10 pages 16,00,000:
4) Articles 2(3), 7(1)1(g), and 7(1)2 of the former Restriction of Special Taxation Act provide that an amount equivalent to 20/100 of the income tax on the income accrued from a business establishment among small and medium enterprises shall be reduced or exempted until the taxable year ending on or before December 31, 2017 by the income tax on the relevant business establishment; however, the classification of the business type used in this Act shall be in accordance with the Korean Standard Industrial Classification publicly notified by the Commissioner of the Statistics Korea pursuant to Article 22 of the Statistics Act.
However, according to the 9th Korean Standard Industrial Classification (amended by the Statistics Korea Notice No. 2017-13, Jan. 13, 2017) that applies in the taxable period subject to the disposition of the instant case, “building construction business (Classification No. 411)” means the industrial activities of constructing, enlarging, reconstructing, and reconstructing buildings that include prefabricated-type buildings by a contracting or a self-managed construction contractor. Even if a subcontract is made for each construction area without a direct construction activity, a construction project is classified as “general construction business (Classification No. 41),” but the industrial activities of selling and selling buildings are classified as “the development and supply business of residential buildings (Classification No. 68121)”.
In light of the following circumstances, Gap evidence 2, Eul evidence 21, and Eul evidence 22 and the purport of the whole arguments, i.e., ① all constructors are stated in each building ledger of the housing of this case **** comprehensive construction (owner). ② at the time of the individual investigation by the director of the Central District Tax Office, Jung-A was continuously engaged in construction business since 1980. The plaintiff Jung-CC stated that it continued to be engaged in construction business **** comprehensive construction (owner) as representative director, but all the plaintiffs including Jung-A and Jung-CC did not possess a construction business license, and are related to each other, even according to the statement by Jung-A and Jung-CC, the remaining plaintiffs except the above plaintiffs are engaged in any occupation unrelated to the construction business, or have no special occupation; ③ the plaintiffs are not equipped with the human resources, physical facilities, or ability to construct the construction business of this case under the overall responsibility of the construction works of this case * the other general housing construction and sales business of this case * the plaintiff's construction and construction business of this case 2.
2. Conclusion
If so, the judgment of the first instance court is justifiable, and the plaintiffs' appeal is dismissed as it is without merit.