Busan District Court-2013-Guhap-4591 ( October 22, 2014)

In case of spending research and development expenses with financial resources from a national subsidy, a political party shall exclude a tax credit for research and development expenses.

In the event that a national subsidy is paid as a financial resource for research and development expenses, a tax credit exclusion provision was newly established on February 18, 2010 to exclude a tax credit for research and development expenses. Since Article 2 to Article 2 of the Addenda of the Act on January 1, 2010 provides that it shall be applied from the business year beginning after January 1, 2010, it is reasonable to exclude the plaintiff from

Article 9 of the Enforcement Decree of the Restriction of Special Taxation

The Busan High Court 2014Nu21158 Revocation of Disposition Rejecting Corporate Tax;

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○ Head of tax office

Busan District Court Decision 2013Guhap4591 Decided May 22, 2014

March 25, 2015

May 13, 2015

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's rejection disposition against the plaintiff on March 6, 2013 regarding the reduction or correction of the amount of duty of KRW 000,000,000, which was rendered on March 13, 2013, against the plaintiff on March 6, 2013, is revoked.

1. Quotation of judgment of the first instance;

The reasons for the judgment to be used in this case are as follows: Article 9(8) of the "Article 9(7)" of the judgment of the court of first instance which is third below shall be "Article 9(7); the "time (round January 2012)" which is the third below shall be "time (round January 2010)"; the "relevant Acts and subordinate statutes" of the judgment of the court of first instance shall be replaced by the "relevant Acts and subordinate statutes" of this judgment; and the "relevant Acts and subordinate statutes" of the judgment of the court of first instance shall be replaced by the "relevant Acts and subordinate statutes" of this judgment; and the reasons for the judgment of the court of first instance shall be as stated in the reasons for the judgment of the court of first instance except for the partial completion as follows; therefore, it shall be cited as

Parts used in bulk

○ From 8 to 9 pages of the judgment of the first instance court, the "decision as to the third argument of the plaintiff is made as follows."

3) Determination on the third argument by the Plaintiff

Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret that a provision clearly deemed a preferential provision among the requirements for reduction and exemption accords with the principle of fair taxation (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 2009).

In light of the above legal principles, Article 9(7) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 2010, Jan. 1, 2010) provides that “The amount of research and development expenses paid for research and development projects pursuant to Article 10-2 of the Act shall be excluded from the calculation of new growth engine expenses, source technology research and development expenses, and general research and development expenses pursuant to Article 10(1) of the Act,” and Article 2(1) of the Addenda of the former Enforcement Decree of the Restriction of Special Taxation Act provides that “the tax base of research and development expenses shall be applied from the beginning of the taxable year after January 1, 2010.” Article 9(7) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that “The tax base of research and development expenses shall be excluded from the total amount of research and development expenses paid for the taxable year under Article 10-2 of the former Enforcement Decree of the Restriction of Special Taxation Act.” Article 10-2 of the former Enforcement Decree of the Restriction of Special Taxation Act provides that research funds shall be excluded from the government subsidy.

Therefore, the plaintiff's above assertion on different premise is without merit.

○ From 9 up to 10 pages of the first instance judgment, the "decision on the plaintiff's fourth argument" portion shall be as follows.

[4] Judgment on the plaintiff's fourth argument

The principle of no taxation without law, which is stipulated in Articles 38 and 59 of the Constitution, is the core contents of the principle of no taxation without law and the principle of clarity of taxation requirements, and the principle of no taxation without law clearly provides for the requirements of taxation, thereby guaranteeing the property rights of the people and ensuring the legal stability and predictability of economic life at the same time. However, while observing the principle of no taxation without law, detailed matters that should be followed by changes in economic reality or development of professional technology should be delegated to administrative legislation with more scarcity than the formal law

Article 10(1) of the former Restriction of Special Taxation Act provides for a certain portion of tax credits to encourage an enterprise to invest in research and human resources development in this case. However, it is necessary to classify research and human resources development expenses rather than uniformly granting tax credits for all research and human resources development expenses, to flexibly and flexibly regulate the scope subject to deduction in response to changes in economic conditions, direction of tax policies, relevant laws and regulations, etc. ② It is inappropriate for the National Assembly to disclose the above matters in the Acts and subordinate statutes, as well as to select specific scope of research and human resources development expenses that are subject to tax credits. (3) It is necessary to delegate research and human resources development expenses to the subordinate statutes, in principle, because it falls under the category of beneficial administrative acts. (5) It is difficult for the legislators to stipulate that the amount of tax credits for research and human resources development expenses falls under the scope of tax deduction under the scope of comprehensive taxation without law, and thus, it can be deemed that the scope of special taxation without taxation can be excluded from the scope of tax credits under the former Corporate Tax Act by taking into account the legislative purpose, beneficiary’s situation and national budget (see Constitutional Court en banc en banc Decision 2038, Jun. 29, 2008, etc.

Therefore, the plaintiff's above assertion is without merit.

2. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.