Cho Jae-2010- Daejeon-3272 ( October 13, 2014),

Tax on capital gains of a corporation that has moved its head office to a local area

Only recognizing the area calculated by multiplying five times the settled area of a building that is newly built and sold by a corporation operating the housing construction and sales business that has relocated its headquarters to the local area, and disposing of the excess area by excluding transfer margin from the tax base subject to reduction

Article 63-2 of the former Restriction of Special Taxation Act

2014Guhap101506 Revocation of Disposition of Corporate Tax Imposition

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○ Head of tax office

October 2, 2014

November 20, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On June 1, 2010, the Defendant revoked the imposition of corporate tax for the business year of 2005 on the Plaintiff (including additional tax).

1. Details of the disposition;

The following facts may be admitted if there is no dispute between the parties, or if the purport of the whole pleadings is added to each entry in Gap evidence Nos. 1, 2, 7, 9, and Eul evidence Nos. 1 and 2 (including a serial number; hereinafter the same shall apply):

A. The Plaintiff, a company established on May 25, 1991, had its head office in Seoul to engage in the housing construction business. On December 20, 2001, the Plaintiff moved its head office to the original city.

B. The Plaintiff filed an application for temporary special tax reduction or exemption under Article 63-2 of the former Restriction of Special Taxation Act (amended by Act No. 7003, Dec. 30, 2003; hereinafter referred to as the "former Restriction of Special Taxation Act") (hereinafter referred to as the "application of this case") (hereinafter referred to as the "temporary special tax reduction or exemption"), and Article 63-2 (2) 2 (a) of the former Restriction of Special Taxation Act (hereinafter referred to as the "land annexed to the land annexed to the house" of which a newly built and sold corporation transfers the house (hereinafter referred to as the "land annexed to the house of this case") was reduced or exempted from corporate tax by calculating the total floor area of the house as the standard.

C. From January 20, 2010 to April 1, 2010, the director of a regional tax office has conducted corporate tax investigation with the Plaintiff, based on the results of such investigation, limited the area calculated by multiplying the land annexed to the instant house which the Plaintiff reported on the basis of “total floor area of the instant house” by five times the area on which the building is built pursuant to Article 60-2(5)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 18176, Dec. 30, 2003; hereinafter “former Enforcement Decree of the Restriction of Special Taxation Act”), and deducted transfer margin from the amount under Article 63-2(2)2(a) of the former Restriction of Special Taxation Act (hereinafter referred to as “tax base subject to reduction and exemption”), and notified the Plaintiff of the disposition imposing additional tax for 2005 business year including the penalty tax (hereinafter referred to as “the remaining portion of the disposition imposing additional tax”).

D. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on August 31, 2010, but was dismissed on January 13, 2014, excluding the portion of additional tax to be submitted due to the failure to submit the payment record of corporate tax in the business year of 2005.

E. After doing so, on January 28, 2014, the Defendant determined the amount of additional tax not submitted according to the decision of the pertinent Tax Tribunal on the refund of 00 won for the portion of additional tax not submitted. The remaining notified tax amount at the time of filing the instant lawsuit is 00 won.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i)The primary argument

㈎ 구 재정경제부는 2001. 2. 28.자 예규(재조예 46019-36)를 통하여, 구 조세특례제한법 (2001. 12. 29. 법률 제6538호로 개정되기 전의 것, 이하 '2002년 시행 전 조세특례제한법'이라 한다) 제63조의 2에 의한 임시특별세액감면에 관하여,「주택신축판매업을 영위하는 법인이 2002년 시행 전 조세특례제한법 제63조의2 규정에 의하여 법인 본사를 지방으로 이전하는 경우, 각 사업연도 소득에 대한 법인세 감면을 계산함에 있어서 구 법인세법(2001. 12. 31. 법률 제6558호로 개정되기 전의 것, 이하 '구 법인세법'이라 한다) 제100조 제1항 제5호의 규정에 의하여 특별부가세가 비과세되는 주택의 양도에 따른 소득은 2002년 시행 전 조세특례제한법 제63조의2 제2항 제2호 가목 규정 중 당해연도 과세표준에서 차감하는 '토지 및 건물의 양도차익' 범위에서 제외되는 것」이라는 유권해석을 하였다. 이는 구 법인세법상 특별부가세의 입법취지와 2002년 시행 전 조세특례제한법 제63조의 제2항 제2호 가목이 '토지 및 건물의 양도차익'을 감면대상 소득에서 배제하도록 한 취지가 동일하다고 본 것이다. 위와 같은 예규에 의하여, 원고와 같이 주된 영업이익이 토지 및 건물의 판매에 따른 소득인 경우에도 2002년 시행 전 조세특례제한법 규정에 따른 과세 혜택을 받을 수 있음이 확인되었다.

On the other hand, Article 92-2 (4) 4 (a) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19328, Feb. 9, 2006; hereinafter referred to as the "Enforcement Decree of the Corporate Tax Act") provides that "the area calculated by multiplying the area on which the building is built by five times the area on which the building is fixed" and "the total area of the house" shall be recognized. Accordingly, the former Ministry of Finance and Economy interpreted the provision of the Enforcement Decree of the Corporate Tax Act to the effect that the special surtax of the past shall be retroactively applied to the special surtax of the past.

Therefore, when interpreting the established rules of February 28, 2001 (e.g., 46019-36) and the rules (re-property-813) of July 11, 2006, which stipulate retroactive application, the amended Enforcement Decree of the Corporate Tax Act shall be deemed to be retroactively applied in relation to the interpretation of "transfer margin of land and buildings" under the former Restriction of Special Taxation Act, and such purport shall be deemed to have been expressed publicly through the established rules of the Ministry of Finance and Economy. The plaintiff trusted this, filed the instant application based on "total floor area of housing" and "large area of building settlement area", and there is no reason for this, so the instant disposition different therefrom is an unlawful disposition in violation of the principle of trust protection.

㈏ 또한 개정 법인세법 시행령은 과거의 불합리한 기준을 시정한 것이어서, 이를 소급적용하도록 한 것인데, 이를 특별부가세에 대하여만 적용하고, 본사 이전에 대한 법인세의 감면배제 기준에는 적용하지 않는 것은 공평의 원칙에 반하는 것이다.

Shed Preliminary Claim - Additional Tax Part

Even if the principal tax of the instant disposition is lawful, in the instant case, there is a conflict of opinion in interpreting the tax law, and Article 63-2(2)2(a) of the former Restriction of Special Taxation only stipulates that the income subject to exclusion from corporate tax reduction is "land and building gains" and does not have any provision regarding the specific scope, so there is room to interpret that the land and building transferred by the corporation is not subject to its application, as alleged earlier, and there are the regulations established by the Ministry of Finance and Economy on the Restriction of Special Taxation and the interpretation of the Corporate Tax Act. In light of the above, there is a justifiable reason that the Plaintiff could not be attributable to the failure to pay corporate tax according to its favorable opinion, and thus, the part concerning additional tax in the instant disposition should be revoked at least.

B. Relevant statutes

Attached Form 3 is as specified in the relevant Acts and subordinate statutes.

C. Determination

(i)Judgment on the primary argument

㈎ 관련 법리

In light of the principle of no taxation without law, the requirements for taxation, non-taxation, or tax exemption and the interpretation of tax laws 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 with the strict interpretation of the provisions that can be clearly viewed as preferential provisions among the requirements for reduction and exemption (see, e.g., Supreme Court Decisions 2002Du9537, Jan. 24, 2003; 2008Du7830, Oct. 23, 2008).

On the other hand, the principle of the protection of trust alleged by the Plaintiff is a general principle of law, which is called the principle of good faith or no theory applies to the tax law relationship arising from administrative dispositions such as this case. Such principle of good faith or no statement of opinion is applied only when there are special circumstances deemed that the protection of taxpayer's trust is consistent with the justice even if the principle of legality is sacrificeed by the principle of legality. For this purpose, the principle of the good faith or no statement of opinion should be applied only when the tax authority orders the public opinion that is the object of taxpayer's trust, ② there is no reason for taxpayer to believe that the name of the opinion of the tax office is fair, ② there is no reason for taxpayer to believe that the name of the opinion of the tax office is fair, ③ the taxpayer has trusted the opinion, and ④ the tax office has committed an act contrary to the above opinion, and ④ the taxpayer's interest would be infringed by the disposition that is contrary to the above opinion, and the above opinion that the taxpayer's trust and no statement of opinion should be presented to the taxpayer (see, e.g., Supreme Court Decision 2001Du384.

㈏ 법인세법 및 법인세법 시행령이 준용되는지 여부

The proviso of Article 63-2 (1) of the former Restriction of Special Taxation Act provides that "real estate business and consumptive service business as prescribed by the Presidential Decree is operated with respect to the corporation excluded from the subject of the temporary tax reduction or exemption in this case." On the other hand, Article 63-2 (2) 2 (a) of the former Restriction of Special Taxation Act provides that "the amount obtained by subtracting transfer margin from the tax base of the land and buildings (excluding the income accruing from the transfer of the land appurtenant to the house as prescribed by the Presidential Decree by the corporation that sells the newly built house)" shall be excluded from the tax base of the relevant taxable year, and Article 60-2 (5) 1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by the Presidential Decree No. 632 (2) 2 (a) of the former Enforcement Decree of the Restriction of Special Taxation Act, which provides that "the land appurtenant to the house, which is newly built for sale, shall be excluded from the area of the newly built house and the land appurtenant to the house by 50 times."

Meanwhile, Article 92-2 (4) of the Enforcement Decree of the amended Corporate Tax Act stating that the Plaintiff may apply mutatis mutandis to the "Presidential Decree" under Article 63-2 of the former Enforcement Decree of the Restriction of Special Taxation Act refers to the income falling under any of the following subparagraphs. In light of the language and text of the Act, "housing and land attached to the house as prescribed by the Presidential Decree" means the house newly built for sale and the land attached to the house, the size of which is less than the size calculated by multiplying the size of the building by the regional rate under the following subparagraphs, and Article 60-2 of the former Enforcement Decree of the Restriction of Special Taxation Act clearly differs from the scope of delegation. ② Article 92-2 (4) of the amended Enforcement Decree of the Restriction of Special Taxation Act provides that the corporation transfers the house for non-business purpose and the land annexed to the house, and Article 92-2 (4) of the former Enforcement Decree of the Restriction of Special Taxation Act provides for the amount equivalent to a certain ratio of transfer income to the corporation which newly built and sold the house, and Article 20-2 (4) of the former Enforcement Decree.

㈐ 과세관청의 견해표명이 있었는지 여부

The plaintiff at least argued that the tax authorities applied the revised Enforcement Decree of the Corporate Tax Act to the interpretation of Article 62-2 of the former Enforcement Decree of the Restriction of Special Taxation Act, and that the tax authorities stated that "the former Enforcement Decree of the Corporate Tax Act shall apply mutatis mutandis to the interpretation of Article 62-2 of the former Enforcement Decree of the Restriction of Special Taxation Act." However, according to the evidence No. 4, the Ministry of Finance and Economy may not have a clear interpretation of the revised Enforcement Decree of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 4601-36, Feb. 28, 2001) to the local government head office of a corporation under Article 63-2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 2010, Feb. 26, 2001). It is difficult to view that the new provision of the former Enforcement Decree of the Restriction of Special Taxation Act concerning the transfer of a house without special surtax pursuant to Article 100 (1) 5 of the former Enforcement Decree of the Restriction of Special Taxation Act.

㈑ 소결

Therefore, it is reasonable to recognize only the area calculated by multiplying five times the area on which the building is built pursuant to Article 60-2 (5) 1 of the former Enforcement Decree of the Restriction of Special Taxation Act among the land annexed to the housing of this case reported by the defendant, and to exclude transfer margin on the area in excess from the tax base subject to reduction and exemption. The plaintiff's assertion contrary to this is without merit.

[Judgment on Preliminary argument]

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the law in cases where a taxpayer violates a duty to report and pay taxes without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim. In such cases, the taxpayer’s intention and negligence is not considered, and the land or mistake of the law does not constitute justifiable grounds (see, e.g., Supreme Court Decision 2013Du1829, May 23, 2013).

In light of the foregoing, it is reasonable to view that the Plaintiff’s application of Article 92-2(4)4 of the Enforcement Decree of the Corporate Tax Act without applying Article 60-2(5) of the former Restriction of Special Taxation in calculating the land annexed to the instant house due to legal sites or misunderstanding regarding transitional provisions. This does not constitute a justifiable ground for the Plaintiff to be exempted from the payment of the relevant penalty tax. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.