[부가가치세부과처분취소][공2004.8.1.(207),1249]
[1] Whether a taxpayer's intentional or negligent act is required to impose an additional tax (negative), and whether the taxpayer's land, etc. is a justifiable ground for not imposing an additional tax (negative)
[2] The criteria for determining whether the special surtax is exempt from special surtax, and whether the supplementary provision before the amendment ceases to exist where the special surtax was amended (affirmative)
[3] The case holding that the liquidation company's erroneous determination that the special surtax is exempted by the interpretation of its own name is merely merely erroneous in the land or misunderstanding of the law, and it is difficult to view that there are justifiable grounds for neglecting the duty to pay the special surtax
[1] Under the tax law, where a taxpayer violates various obligations, such as a tax return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, a taxpayer’s intention or negligence is not considered, but does not constitute justifiable grounds that do not cause a taxpayer’s breach of duty.
[2] The special surtax is a kind of corporate tax for which tax requirements are established by the transfer of assets, and the transfer of assets is subject to taxation, so whether the transferred assets meet the taxation requirements and tax exemption requirements should be determined on the basis of the time of transfer. In addition, in the case of a specialized amendment of the amended Act, the same applies to the repeal of the existing Act and the enactment of a new Act, and the provisions of the Addenda as well as the previous Acts shall be deemed extinguished, barring any special circumstance, the transitional provisions of the previous Addenda of the Act shall be deemed null and void.
[3] The case holding that the liquidation company's erroneous determination that the special surtax is exempted by the interpretation of its own name is merely a mistake in the land or misunderstanding of the law, and it is difficult to view that there are justifiable grounds for neglecting the duty to pay the special surtax
[1] Article 2 subparag. 4 and Article 47 of the Framework Act on National Taxes; Article 41 (see current Article 76) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 198); Article 1 and Article 10(2) of the Addenda (amended by Act No. 3865 of Dec. 26, 1986) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 3865 of Dec. 26, 1986); Article 63(2) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4743 of Mar. 24, 1994); Article 7 and Article 16(1) and (2) of the former Corporate Tax Act (amended by Act No. 558 of Dec. 28, 1993); Article 58(1)2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 1965 of Dec. 168, 298 of the current Regulation)
[1] Supreme Court Decision 95Nu92 delivered on November 7, 1995 (Gong1995Ha, 3941), Supreme Court Decision 95Nu14602 delivered on May 16, 1997 (Gong197Sang, 1784), Supreme Court Decision 96Nu6745 delivered on June 13, 1997 (Gong1997Ha, 2066), Supreme Court Decision 98Du16705 delivered on September 17, 199 (Gong1999Ha, 22248 delivered on December 28, 201), Supreme Court Decision 98Du3532 delivered on December 29, 209 (Gong200Sang, 209Sang, 209Du82979 delivered on June 28, 201)
The bankruptcy trustee of friendly Construction Co., Ltd., a bankruptcy trustee of friendly Construction Co., Ltd. (Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)
Head of Seocho Tax Office
Seoul High Court Decision 2001Nu9969 delivered on October 11, 2002
The judgment below is reversed and the case is remanded to Seoul High Court.
Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, where a taxpayer violates various obligations, such as a return and tax payment, as prescribed by the Act without justifiable grounds, the taxpayer’s intention or negligence is not considered, and the site, error, etc. of the Act does not constitute justifiable grounds that do not constitute a breach of duty (see Supreme Court Decision 2001Du4689, Nov. 13, 2002, etc.).
Article 58 (1) 2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 3865, Dec. 26, 1986; hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act") provides that "the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 1065, Jan. 1, 1987; hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act") shall not apply to the transfer of a building constructed pursuant to the business plan determined by the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 1065; hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act") and the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 196, Dec. 26, 198; hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act") shall not apply to the transfer of a new special surtax by the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 1660, Jan. 1, 198).
However, the special surtax is a type of corporate tax for which the requirements for taxation are established by the transfer of assets. It is necessary to determine whether the transfer assets meet the requirements for taxation and tax exemption based on the time of transfer (see, e.g., Supreme Court Decisions 94Nu6871, Mar. 24, 1995; 9Du8268, Jul. 27, 2001; 99Du8268, Jun. 27, 2001; hereinafter the same applies as the abolition of the existing law and the enactment of a new law, and the provisions of the supplementary law as well as the previous law are all null and void (see, e.g., Supreme Court Decision 2001Du1168, Jul. 26, 2002). Thus, it is difficult to view that the new provisions of the supplementary tax exemption provisions of Article 10(1) or 201 of the Addenda of the previous Act, which are the grounds for the application of the special surtax to the transfer of real estate, as the new provisions of the special surtax.
Therefore, the judgment of the court below that determined differently is erroneous in the misapprehension of legal principles as to legitimate grounds in imposing additional tax, which affected the conclusion of the judgment, and the ground of appeal disputing this point is with merit
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.
Justices Lee Yong-woo (Presiding Justice)