Daegu District Court 2005Guhap3235 (209.04.03)

National High Court 2004Gu1449 (205.04)

In principle, if the amended Act is a specialized amendment, the previous Addenda will be invalidated, or if there are special circumstances, the validity shall not be lost.

In principle, if the revised law is a specialized amendment, it shall not lose its validity if there are special circumstances. In determining this, the court shall comprehensively consider the legislative background and purport of the previous transitional provision, the legislative intent and purpose of the specialized law, the system of the former revision, and whether there is a legal gap in the case of the former transitional provision being invalidated.

The contents of the decision shall be the same as attached.

Article 26-2 (Period for Excluding Assessment of National Taxes)

Article 12-2 (Initial Date for Exclusion Period for National Taxes)

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the part exceeding KRW 142,50,950,494 of the disposition of imposition of corporate tax of KRW 1,054,950,494 for the business year of 1990 against the plaintiff on January 17, 200 and the part exceeding KRW 32,158,485 of the disposition of imposition of KRW 268,401,178 for the business year of 1990, and the part exceeding KRW 268,58,

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, and the "related Acts and subordinate statutes" attached to the judgment of the court of first instance shall be newly attached as shown in the attached Form, and the judgment on the legality of the disposition of this case as stated in the attached Forms 5 and 6 and 9 of the judgment of the court of first instance shall be accepted as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Determination

A. Whether it violates the principle of no taxation without law

(1) The progress of the amendment of the regulations on special cases of revaluation during the disclosure of the company

The former Regulation of Tax Reduction and Exemption Act (amended by Act No. 3939, Nov. 28, 1987; hereinafter referred to as the "previous Article 56-2") provides that the corporation which first intends to list its stocks in the Korea Stock Exchange under Article 88 (1) of the Securities and Exchange Act may conduct revaluation under the Assets Revaluation Act as the date of revaluation, notwithstanding the provisions of Articles 4 and 38 of the Assets Revaluation Act, in case where the corporation which conducted revaluation fails to list its stocks in the Korea Stock Exchange within 2 years from the date of revaluation in order to support the sound development of the capital market, even if it fails to meet the requirements for revaluation under the Assets Revaluation Act, and newly establishes Article 56-2 of the former Corporate Tax Act (amended by Act No. 3939, Nov. 28, 1987; hereinafter the same shall apply).

Article 56-2 of the former Regulation on Tax Reduction and Exemption (amended by Act No. 4285 of Dec. 31, 1990) of the Act on the Regulation of Tax Reduction and Exemption (amended by Act No. 4285 of Dec. 31, 1990) was deleted, and Article 23 of the Addenda (amended by Presidential Decree No. 132 of the former Enforcement Decree of the Regulation on Tax Reduction and Exemption (amended by Act No. 13202 of Dec. 31, 1990) of the former Enforcement Decree of the Regulation on Tax Reduction and Exemption (amended by Presidential Decree No. 13202 of Dec. 31, 1990) of the former Enforcement Decree of the Regulation on Tax Reduction and Exemption (amended by Presidential Decree No. 2684 of Dec. 14, 1993) of the former Enforcement Decree of the Regulation on Tax Reduction and Exemption Act (amended by Presidential Decree No. 2684 of Dec. 26, 1993).

After that, while Article 2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993) which was amended and enforced from January 1, 1994 (hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act") of the Addenda, "the amended provision on income tax and corporate tax under this Act shall apply from the taxable year beginning after the enforcement of this Act" was "general applicable case", the former Article 56-2 of the former Regulation of Tax Reduction and Exemption Act and the supplementary provision of this case did not have any special transitional provision.

On the other hand, even after the enforcement of the Special Act on the Regulation of Tax Reduction and Exemption, etc., the former Enforcement Decree of the Regulation of Tax Reduction and Exemption still provides for the supplementary provision of this case as the parent law, and provides for "eight years" (Article 109 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act amended by Presidential Decree No. 14084 of December 31, 1993), "10 years" (Article 109 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act amended by Presidential Decree No. 15197 of December 31, 1996), "1 year" (Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act amended by Presidential Decree No. 15976 of Dec. 31, 198), "13 years" (Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act amended by Presidential Decree No. 1693 of Oct. 10, 200).

(2) Whether this case’s supplementary provision becomes invalid or not

If there is no explicit measure to amend or delete the transitional provision of the Addenda to the previous Act at the time of the amendment of the Act, the transitional provision of the Addenda does not become null and void as a matter of course, even though there is no express provision to revise or delete the transitional provision of the previous Act, but the transitional provision of the previous Act does not become null and void. However, since the amendment of the former Act is the same as the abolition of the previous Act and the enactment of a new Act, the transitional provision of the previous Act is deemed null and void as well as the Addenda provision of the previous Act is in principle. However, if there are special circumstances, its validity does not become null and void (see, e.g., Supreme Court Decision 2001Du1168, Jul. 26, 2002).

However, with the removal of the former provisions of Article 56-2, which are the special provisions for asset revaluation, the provisions of the supplementary provisions of the Act on the Regulation of Tax Reduction and Exemption, the effect of asset revaluation (paragraph (1)) at the time of listing and the time of cancellation for the corporation to ex post facto regulate only the corporation which has already conducted asset revaluation under the above provisions, and the effect thereof (paragraph (2) at the time of cancellation for the corporation to be specified by the Presidential Decree only for the time limit for listing. Therefore, even if the provisions of the supplementary provisions of the Act on the Regulation of Tax Reduction and Exemption as amended do not stipulate the transitional provisions of the Act on the Regulation of Tax Reduction and Exemption, it seems that there are no separate transitional provisions concerning the special provisions for asset revaluation, and if the new provisions of the supplementary provisions of the Act on the Regulation of Tax Reduction and Exemption have already been enacted, it is difficult to view that the new provisions of the supplementary provisions of the Act on the Regulation of Tax Reduction and Exemption to be effective by the previous Article 56-2 of the Act on the Regulation of Tax Reduction and Exemption and Exemption, etc.

Therefore, the disposition of this case based on the above supplementary provision and Article 138 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458 of Dec. 31, 2001) that made the above supplementary provision effective and its parent law is legitimate. Thus, the prior plaintiff's assertion on a different premise is rejected as it is without merit.

[On the other hand, the exclusion period of corporate tax has been extended more than 15 years due to the provisions of the above Enforcement Decree. This means to make the legal status of taxpayers over a long time unstable and to make it considerably against the principle of proportionality. Thus, the above provision of the Enforcement Decree also claims that the provision of the above Enforcement Decree is unconstitutional. However, the provision of the taxation requirement and the exceptional provision of non-taxation or tax exemption requirements for it in the tax law is within the legislative discretion of the legislator unless the provision is clearly unreasonable (see, e.g., Supreme Court Decision 2003Du13076, Dec. 9, 2004). In light of the purport of the previous provision of Article 56-2 and the principle of tax equity with the corporation that reported and paid corporate tax, etc., or the corporation that listed and listed within the listing period, it cannot be deemed significantly unreasonable or unfair to extend the listing time over several times in light of the purpose of the above provision and the principle of tax equity with the corporation that listed within the listing period.]

(b) Whether the exclusion period has expired;

Article 26-2 of the Framework Act on National Taxes provides that, in principle, the exclusion period of national taxes, other than inheritance and gift taxes, shall be five years from the date on which national taxes can be imposed.

According to Article 9(2) of the former Corporate Tax Act and Article 12(1)5 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14468 of Dec. 31, 1994), any voluntary evaluation marginal profit of assets not under the Assets Revaluation Act shall be included in gross income in calculating the income of the relevant corporation. However, any evaluation marginal profit under the Assets Revaluation Act shall not be included in gross income under Article 15(1)5 of the former Corporate Tax Act, but any evaluation marginal profit under the Assets Revaluation Act shall not be included in gross income under Article 15(1)5 of the former Corporate Tax Act, but if a corporation which conducts asset revaluation under Article 56-2 fails to list its stocks by December 31, 2003, which is the "period prescribed by Presidential Decree" under Article 1 of the Addenda of the instant case, the relevant evaluation marginal profit shall not be included in gross income under Article 12(1) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14468 of Dec. 14, 2000).

Therefore, the disposition of this case taken on January 17, 2004 was made within the exclusion period of five years, and thus is lawful, and the prior plaintiff's assertion on a different premise is rejected as it is without merit.

(c) Whether it constitutes a taxation requirement

Article 23 (1) of the Addenda of the instant case provides that only the case where the stocks of the Korea Stock Exchange are not listed within the period set by the President from the date of re-evaluation shall not be deemed re-evaluation under the Assets Revaluation Act, and that there is a cause attributable to the taxpayer as a premise in the case where the stocks are not listed.

In addition, even if the above provision is limited and interpreted only when a domestic taxpayer fails to list his/her shares due to a cause attributable to him/her, it shall not be deemed an evaluation under the Assets Revaluation Act. However, even if the Government requests a stock company to list its shares on the ground of excessive supply of the stock market as alleged by the Plaintiff, the Plaintiff Company applied for a securities registered corporation to the Securities Supervisory Board on June 1993, but it was pointed out that the Securities Supervisory Board's audit report of the Plaintiff company included an excessive appropriation of the retirement allowance for officers among the audit report of the Plaintiff company. After that, the Plaintiff Company recognized the propriety of the external audit examination committee for some of the matters pointed out, and then the Plaintiff Company withdrawn its listing of shares on or around December 1993. However, it can be seen that it has withdrawn the above retirement allowance issue. In light of this, even if it is considered that the Government demanded a stock company to list its shares on the ground of excessive supply of the stock market, it cannot be determined that the Plaintiff did not list its shares at all without any reason attributable to it.

Therefore, the plaintiff's above assertion cannot be accepted as it is without merit.

D. Whether the principle of good faith is violated

As seen earlier, the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act and the Enforcement Decree of the Restriction of Special Taxation Act were amended several times, and the listing period of stocks is extended, not only by taking account of the ripple effect on the stock market due to excessive supply of stocks through corporate disclosure, but also on the other hand, taking into account the circumstances of the corporation which conducted asset revaluation under the

However, even if the listing period has been extended for several years, the trust relationship cannot be said to have been formed between the plaintiff, government, and the defendant that the listing period will be extended continuously and regularly in the future, or that the corporate tax will not be imposed on the corporation which assessed its assets based on the special provisions on revaluation at the time of the disclosure of the company.

Therefore, under the Enforcement Decree of the Act on Special Cases concerning Tax Restriction amended on December 31, 2001, the listing period of shares was specified as of December 31, 2003, and the Plaintiff cannot assert the violation of the good faith principle on the ground that the listing period was no longer extended. Therefore, the said assertion is rejected as it is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation on the premise that the disposition of this case is illegal shall be dismissed on the premise that it is not reasonable. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed on the ground that it is without merit. It is so decided as per Disposition.