[1] In a case where a combined interpretation of the principle of interpretation of tax laws and regulations is inevitable

[2] In a case where Gap corporation, which is a telecommunications business operator, sought a return of unjust enrichment equivalent to the stamp tax paid in relation to the application for joining the above service against the State, by asserting that the IMT Incheon service does not fall under the " mobile or personal mobile communications service" under Article 4 subparagraph 2 of the Enforcement Decree of the Stamp Tax Act, the case holding that the IMTcheon service constitutes " mobile or personal mobile communications service" under the above provision

[1] Under the principle of no taxation without law, the interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. However, where it is necessary to clarify the meaning through the interpretation between the laws and regulations, it is inevitable to make a combined interpretation with the purpose of considering the legislative intent and purpose to the extent that it does not undermine the legal stability and predictability pursued by the law.

[2] In a case where Gap corporation, a telecommunications business operator, sought a return of unjust enrichment equivalent to the stamp tax paid in relation to the application for joining the above service against the State, claiming that the IMT 2 does not correspond to the " mobile or personal mobile communications service" under Article 4 subparagraph 2 of the Enforcement Decree of the Stamp Tax Act, the case holding that the stamp tax is a tax imposed on documents pertaining to the creation, transfer, or modification of the right to property in Korea, and that the stamp tax is a tax document which provides the "application for subscription to mobile or personal mobile communications service among the common telecommunications service under the Telecommunications Business Act" in Article 3 (1) 7 (b) of the Stamp Tax Act and Article 4 subparagraph 2 of the Enforcement Decree of the same Act, as well as on the establishment of the right to use the mobile communications service, which is a document for taxation, is also because the right to use the mobile communications service, which is a telecommunications service under the Telecommunications Business Act, has been created through such application, and that the IMT 2000 service merely differs from the technical aspects of the right to use of the mobile service.

[1] Articles 38 and 59 of the Constitution / [2] Article 3(1)7 of the Stamp Tax Act; Article 4 subparag. 2 of the Enforcement Decree of the Stamp Tax Act; Article 2 subparag. 11 of the former Telecommunications Business Act (Amended by Act No. 11690, Mar. 23, 2013); Article 2 of the former Enforcement Decree of the Telecommunications Business Act (Amended by Presidential Decree No. 23642, Feb. 28, 2012)

[1] Supreme Court Decision 2007Du4438 decided Feb. 15, 2008 (Gong2008Sang, 405)

KT Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Song-chul et al., Counsel for the defendant-appellant)

Korea (Government Law Firm Corporation, Attorneys Kim Young-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na202418 decided January 22, 2016

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. Article 1(1) of the Stamp Tax Act provides that “A person who prepares a contract for the creation, transfer, or change of a right, etc. to property in the Republic of Korea, or other document certifying such contract, shall be liable to pay stamp taxes on the document in accordance with this Act when preparing the document.” Article 3(1)7(b) of the Stamp Tax Act and Article 4 Subparag. 2 of the Enforcement Decree thereof provide that “a taxable document that shall pay stamp taxes is one of the taxable documents for the use of a radio telephone call or personal portable communications service among common telecommunications services provided for in the Telecommunications Business Act.”

B. Under the principle of no taxation without the law, the interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. However, where it is necessary to clarify the meaning through the interpretation between the laws and regulations, it is inevitable to make a combined interpretation with the purpose of considering the legislative intent and purpose within the scope that does not undermine the legal stability and predictability pursued by the principle of no taxation without the law (see Supreme Court Decision 2007Du4438, Feb. 15, 2008, etc.).

Article 2 Subparag. 11 of the former Telecommunications Business Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) as cited in the aforementioned laws and subordinate statutes provides for a telecommunications service for transmitting or receiving voice, data, images, etc., such as telephone, Internet connection without any change in its content or form. There is no provision explicitly defining “radiophone mobile phone or personal mobile communications service” as the concept belonging to the lower classification. However, Article 2 of the former Enforcement Decree of the Telecommunications Business Act (amended by Presidential Decree No. 23642, Feb. 28, 2012; hereinafter the same) provides for a specific content of universal service pursuant to delegation of Article 4(3) of the former Telecommunications Business Act (amended by Act No. 11690, Mar. 23, 2013); Article 2 Subparag. 11 of the former Telecommunications Business Act (amended by Act No. 11690, Mar. 23, 2013).

① However, stamp taxes imposed on documents pertaining to the creation, transfer, or change of rights, etc. to property in the Republic of Korea, because Article 3(1)7(b) of the StampA and Article 4 Subparag. 2 of the Enforcement Decree thereof stipulate “application for subscription to mobile phones or personal mobile communications services among key telecommunications services under the Telecommunications Business Act” as taxable documents through such application for subscription also establish the right to use mobile communications services, which is a wireless telephone, through such application. ② However, IMT 200 services are only different from technical aspects, and there is no difference in the intrinsic nature in which the right to use mobile communications services, which is a wireless telephone, is established. ③ Whether the legislative intent is determined on the basis of the inherent nature of such common telecommunications services, and it is difficult to determine whether the mobile telecommunications service, which is a key telecommunications business operator under the former Telecommunications Business Act, can be deemed as being subject to imposition of taxes on the newly emerging mobile telecommunications service based on the time of scientific and technological development in terms of legislation and technical aspects.

2. In full view of the adopted evidence, the lower court rejected the Plaintiff’s assertion that the Defendant obtained a benefit equivalent to the stamp tax without any legal ground due to the erroneous payment of stamp tax, on the ground that Article 4 Subparag. 2 of the Enforcement Decree of the Revenue and Gift Tax Act regarding stamp tax documents “a radio telephone or personal portable communications service” in the part concerning AIM’s “a radio telephone or personal portable communications service” was reasonable and reasonable to have a meaning including AIM’s services.

In light of the above provisions, legal principles, and records, it is inappropriate for the court below to reject the plaintiff's claim as above, but it cannot be recognized that IMT 200 services constitute "radiophone mobile or personal portable communications services" under Article 4 subparagraph 2 of the Enforcement Decree of the Inheritance and Gift Tax Act, and thus, it cannot be acknowledged that the defendant has a duty to return unjust enrichment. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the principle of strict interpretation of the no taxation without law and tax laws,

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)