Cho High Court Decision 2009Du3862 ( December 14, 2009)

Where financial and credit card businesses are concurrently run, the scope of education tax taxable objects.

If a financial and insurance business entity concurrently operates a credit card business other than its own business, the amount of fees incurred in the relevant credit card business shall not be subject to education tax.

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

1. 가. 피고 남대문세무서장이 2009. 7. 6. 원고 주식회사 ◆◆은행에 대하여 한 별지 경정청구목록(1) 기재 2006년 제1기분 내지 2008년 제4기분 각 교육세 경정청구 거부처분을,

B. On July 30, 2009, the director of the final tax office rejected the application for correction of each education tax amount on the first to fourth years from 2006 as stated in the annexed Table of Claim for Correction (2) against the Plaintiff ○○ Bank;

다. 피고 남대문세무서장이 2009. 6. 29 원고 주식회사 ■■은행에 대하여 한 별지 경정청구목록(3) 기재 2006년 제1기분 내지 2008년 제4기분 각 교육세 경정청구 거부처분을,

D. On June 22, 2009, the director of the Seoul Southern District Tax Office rejected the application for correction of each education tax on the first to fourth period of 2006, listed in the separate sheet of claim for correction (4) against the Plaintiff Seocho Bank;

E. On June 9, 2009, the director of the tax office rendered a disposition of rejecting an application for rectification of each education tax for the first term of 2006 to 4 years 2008 listed in the attached Table of Claim for Correction (5) against the Plaintiff Masan Bank Co., Ltd.

F. On June 25, 2009, the director of the Seoul Southern District Tax Office rejected the claim for correction of each education tax in the first to fourth years from 2006, listed in the separate sheet of correction claim (6) against the Plaintiff △△ Council on June 25, 2009;

사. 피고 ◁◁진세무서장이 2009. 6. 16. 원고 주식회사 ◁◁은행에 대하여 한 별지 경정청구목록(7) 기재 2006년 제1기분 내지 2008년 제4기분 각 교육세 경정청구 거부처분을,

아. 피고 ▷▷세무서장이 2009. 6. 23. 원고 주식회사 ▷▷은행에 대하여 한 별지 경정청구목록(8) 기재 2006년 제1기분 내지 2008년 제4기분 각 교육세 경정청구 거부처분을,

자. 피고 ★★세무서장이 2009. 7. 30 원고 주식회사 ★★은행에 대하여 한 별지 경정청구목록(9) 기재 2006년 제1기분 내지 2008년 제4기분 각 교육세 경정청구 거부처분을,

차. 피고 북전주세무서장이 2009. 7. 2 원고 주식회사 ▼▼은행에 대하여 한 별지 경정청구목록(10) 기재 2006년 제1기분 내지 2008년 제4기분 각 교육세 경정청구 거부처분을,

(k) The director of the tax office on July 20, 209 rejected the application for correction of each education tax for the first to fourth years of 2006 listed in the separate sheet of claim for correction (11) against the Plaintiff △△△ Council on July 20, 209;

타. 피고 동♧♧세무서장이 2009. 8. 31 원고 주식회사 ♧♧은행에 대하여 한 별지 경정청구목록(12) 기재 2006년 제2기분 내지 2008년 제4기분 각 교육세 경정청구 거부처분을,

All cancellations.

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

The same shall apply to the order.

1. Details of the disposition;

A. Status of the plaintiffs

The plaintiffs are credit card companies that are engaged in banking business under the Banking Act and are engaged in credit card business under the Specialized Credit Financial Business Act.

B. Plaintiffs’ report and payment of education tax

원고들은 별지 각 경정청구목록의 각 최초신고란 기재와 같이 2006년 제1기부터 2008년 제4기까지(원고 주식회사 ♧♧은행은 2006년 제2기부터 2008년 제4기까지) 의 교육세 과세기간에 걸쳐 원고들의 신용카드업무 관련 수익금액(이하 '이 사건 신용 카드 수익금액')을 교육세 과세표준에 포함하여 교육세를 법정신고 기한 내에 신고・납

The Court stated that the company was not a party.

C. The defendant's rejection of correction

(1) 원고 주식회사 ◆◆은행, 주식회사 ■■은행, 주식회사 ★★은행은 각 2009. 6. 1.(2009. 5. 31.은 일요일이다), 원고 주식회사 ○○은행, □□은행, △△회, 주식회사 ◁◁은행, 주식회사 ▷▷은행, 주식회사 ▼▼은행 ◇◇회는 각 2009. 5. 29 원고 주식회사 ▽▽은행은 2005. 28. 주식회사 ♧♧은행은 2009. 8. 29. 해당 각 피고에게 이 사건 신용카드 수익금액을 과세표준에 포함시키지 않는 것으로 하여 별지 각 경정청구목록의 각 경정청구란 기재와 같이 교육세 경정청구를 하였다.

(2) The Defendants rejected the Plaintiffs’ request for correction on each corresponding date on the grounds that the amount of revenue accruing from the credit card business when the Bank concurrently operates the credit card business falls under the revenue amount of the financial and insurance businessmen which is the tax base of education tax (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap's evidence 1 to 3, Gap's evidence 1 to 12, Gap's evidence 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

According to Article 3 subparag. 1 [Attachment] of the former Education Tax Act (amended by Act No. 9262 of Dec. 26, 2008, hereinafter the same), a credit card company is not a duty payer for education. Since the credit card business revenue is obtained not as a status of a financial or insurance business entity, but as a credit card company's status as a credit card company, the above revenue is not the status of a credit card business entity but as a credit card company's status as a credit card business entity, so the above revenue is not included in the education tax base. Therefore, the disposition

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Comprehensively taking account of the following circumstances, the Plaintiffs’ credit card related revenue does not constitute the revenue amount of financial and insurance businessmen subject to education tax.

(A) Article 3 of the former Education Tax Act provides that financial and insurance business entities, persons liable for individual consumption tax, persons liable for payment of traffic, energy and environment tax, and persons liable for payment of liquor tax shall be liable for education tax. Article 5(1) of the same Act provides that in cases of financial and insurance business entities, the amount of revenue of the relevant business entity, unlike other taxpayers, may vary

Accordingly, Article 5(3) of the former Education Tax Act and Article 4(1) and (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21296, Feb. 4, 2009; hereinafter the same) stipulate that interest, dividends, fees, guarantee fees, import fees, other operating income and non-business income received by financial and insurance business entities shall be included in the tax base, but the amount of revenue generated from overseas places of business and internal income shall not be included in the tax base.

According to the relevant Acts and subordinate statutes, in the case of financial and insurance business entities liable for education tax, all the revenue acquired in the relevant taxable period shall not be included in the tax base of education tax, but shall be liable for education tax for a certain amount of revenue depending on the source of revenue generated. In light of the purport of these provisions, it is reasonable to view that the obligation to pay education tax is not established on the basis of the fact that the taxpayer is in a legal position, but it is determined whether the taxpayer has obtained the revenue through any business.

(B) Article 3 subparag. 1 of the former Education Tax Act provides financial institutions under Article 3 of the Banking Act as taxpayers of education tax, but credit card companies under the Specialized Credit Financial Business Act are not obliged to pay education tax.

According to Article 2 (1) 2 of the former Banking Act (amended by Act No. 9784 of Jun. 9, 2009; hereinafter the same), financial institutions mean all corporations, other than the Bank of Korea, which regularly and systematically engage in banking business. Article 2 (1) 2 of the former Banking Act (amended by Presidential Decree No. 20947 of Jul. 29, 2008), Article 18-2 of the former Enforcement Decree of the Banking Act (amended by Presidential Decree No. 20947 of Jul. 29, 2008) provides for "all business activities related to banking such as receipt of deposits and installment savings, issuance of securities and other bonds, lending of funds, discount of bills, etc.

Meanwhile, Article 2 subparagraphs 1 and 2 of the former Specialized Credit Financial Business Act (amended by Act No. 9459, Feb. 6, 2009; hereinafter the same) which was enacted separate from the former Banking Act provides that "credit card issuance and management business, settlement business related to the use of credit card, and recruitment and management business of credit card merchants" shall be "credit card business" and shall be treated as "credit card business," and therefore, credit card business shall be distinguished from banking business.

Accordingly, Article 28(1) of the former Banking Act and Article 18-3(2) of the Enforcement Decree of the same Act provide that where a financial institution intends to directly engage in credit card business under the Specialized Credit Financial Business Act, which is not banking business, it shall obtain authorization from the Financial Services Commission separately from banking business, and the financial institution which has obtained such authorization may engage in credit card business as a concurrent loan service provider with a separate license pursuant to Article 3(3)1 of the former Enforcement Decree of the Specialized Credit Financial Business Act (amended by Presidential Decree No. 20947, Jul. 29, 2008) pursuant to Article 3(1)1 of the former Enforcement Decree of the Specialized Credit Financial Business Act (amended by Presidential Decree No. 20947, Jul. 29, 2008).

On the other hand, comprehensively taking account of the overall purport of arguments as to Gap evidence 5-1 through 6, Gap evidence 6-1 through 5, Gap evidence 7-1, 2, and Gap evidence 13-1 through 12, the plaintiffs, while concurrently operating credit card business, have separate account books and records concerning credit card business and separate accounts. The credit card revenue amount of this case is credit sales commission, cash service commission, credit card loan interest, purchase credit card related interest, other credit card related fees, foreign exchange credit card fee, etc.

In full view of the aforementioned provisions separate from the above facts and the credit card business, it is reasonable to view that the plaintiffs have the status as a credit card company engaging in the credit card business, separate from the status as a bank engaged in the banking business. The amount of credit card revenue of this case cannot be viewed as the revenue accruing from the credit card business, which is issued by the credit card company as prescribed by the former Specialized Credit Finance Business Act and operated by the financial institutions, and which is the revenue accruing from the banking business or the business incidental thereto. Therefore, it is reasonable to view

(c)The revenue amount of credit card companies other than the Bank is not subject to education tax, and unlike the above interpretation, if education tax is imposed on the revenue amount related to credit card business of the Bank on the ground that the Bank concurrently operates the credit card business, it is against the balance of tax.

(D) The amount of the credit card revenue of this case does not fall under any of the items of the revenue included in the education tax base of the financial and insurance business entities under Article 5(3) of the former Education Tax Act and Article 4(1) of the Enforcement Decree of the same Act [other operating profit and non-business profit" under Article 4(1)8 of the former Enforcement Decree of the Education Tax Act 21.C. 'other operating profit" is "other operating profit" as "property disposal profit, product and securities appraisal profit, product and securities dividend, investment securities dividend, investment securities dividend, reserve for payment guarantee, reserve for payment guarantee, other operating profit," and 23. 23. The accounting rules stipulate "non-business profit" as "type of asset disposal profit, rent, share appraisal profit, investment securities disposal profit, investment stock disposal profit, stock reduction loss refund, investment stock reduction loss refund, investment stock stabilization profit and other operating profit," and it cannot be deemed that the credit card revenue of this case falls under any of the following items].

(2) Therefore, the instant disposition rejecting the Plaintiffs’ claim for rectification is unlawful on the grounds that the credit card revenue amount of this case constitutes the amount of revenue of financial institutions serving as education tax base.

3. Conclusion

The plaintiffs' claim of this case is justified and accepted.