Plaintiff Co., Ltd. (Law Firm Rate, Attorneys So-young et al., Counsel for the plaintiff-appellant)

Head of Geumcheon Tax Office (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

September 20, 2006

Seoul Administrative Court Decision 2005Guhap21491 decided Dec. 1, 2005

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 disposition of imposition of KRW 27,413,565 of the corporate tax of 1990 for the business year of 190 against the plaintiff on January 16, 200 and KRW 545,30,702 of the defense tax of KRW 27,413,565 of the business year of 1990, respectively.

1. Details of the disposition;

A. As of January 1, 1990, the Plaintiff, a company conducting educational, publishing, cultural business, etc., conducted a revaluation of assets on its own property (hereinafter “evaluation of assets in this case”) under the premise of “the listing of stocks in the company at issue” under the provisions of Article 56-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 3939 of Nov. 28, 1987, and amended by Act No. 4285 of Dec. 31, 1990), and reported and paid corporate tax for the business year 190 without including the difference in revaluation 7,794,90,940,940 won (hereinafter “the difference in dispute”) in its gross income under Article 15(1)5 of the Corporate Tax Act.

B. After the amendment of the Regulation of Tax Reduction and Exemption Act and its Enforcement Decree, the listing period of stocks (the time limit in which a corporation which conducted revaluation under the above special exception should list its stocks) last extended until December 31, 2003. The Defendant, on the ground that the Plaintiff Company did not list its stocks by December 31, 2003 within the listing period, was amended by Act No. 4285 of December 31, 1990; hereinafter “former Regulation of Tax Reduction and Exemption Act”, unless there is any special provision, referring to the time limit in which the former Regulation of Tax Reduction and Exemption Act was amended by Act No. 4285 of December 31, 1990; hereinafter “former Regulation of Tax Reduction and Exemption”) and Article 23(1) of the Addenda of the Assets Revaluation Act (hereinafter “the Addenda of this case”) included the key valuation difference in the calculation of the corporate tax base and amount of tax for the business year of 1990 and included the amount of additional tax for the Plaintiff on December 16, 1904, 1907

C. Upon the plaintiff's filing of a national tax adjudication, the National Tax Tribunal rendered a decision on April 20, 2005 that "the amount of tax shall not be imposed an under-reported additional tax and an under-paid additional tax among the corporate tax and the defense tax for the 1990 business year," and accordingly, the defendant corrected the amount of tax to 2,167,496,029 as corporate tax on May 16, 2005, and the defense tax amount to 545,30,702 as corporate tax on 1990 as above (the "the disposition of this case" is collectively referred to as the "the disposition of this case").

[Ground of recognition] Each entry of Gap evidence 1, 2, Gap evidence 3, Eul evidence 1, 2, and 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) The applicable law applied by the Defendant while imposing the instant tax disposition is Article 138 of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by Presidential Decree No. 17458, Dec. 31, 2001) which provides for the “Special Cases of Revaluation at the Time of Public Disclosure” and the “listed period.” However, the former Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 4666, Dec. 31, 1993; hereinafter “Special Regulation of Tax Reduction and Exemption Act”) which was amended by Act No. 4666, Jan. 1, 1994, loses its effect by failing to provide for any provision regarding the “Special Cases of Revaluation at the Time of Public Disclosure.” As long as the delegated provision of the Act becomes invalid, the above provision of the Restriction of Tax Reduction and Exemption Act also violates the provisions of the Restriction of Tax Reduction and Exemption Act that are invalid. Therefore, the disposition of this case is based on the principle of no taxation without law.

(2) Therefore, in order to find the grounds for the instant disposition, Article 66 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act prior to the enforcement of the said Act, and Article 66 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act prior to the enforcement of the said Act (Presidential Decree No. 13202, Dec. 31, 1990). However, the above provisions of the Enforcement Decree of the Regulation of Tax Reduction and Exemption stipulate the listing period as five years from the date of revaluation, and accordingly, according to which the Defendant is able to impose national taxes on the Plaintiff (as of January 1, 1995, which was five years after the date of revaluation, from January 1, 1990) to the date on which the Plaintiff is able to impose national taxes (as of January 1, 1995, which was five years after the date of revaluation), the exclusion period of the corporate tax and defense tax of this case was imposed as of January 1, 200.

(3) In light of the legislative intent of the former Regulation of Tax Reduction and Exemption Act (Act No. 3939) and the former Regulation of Tax Reduction and Exemption Act (Act No. 4285), the term “cases where stocks are not listed due to a taxpayer’s cause attributable to the taxpayer” as stated in the same provision should be interpreted narrowly. However, the failure of the Plaintiff company to list is not due to the Plaintiff’s cause attributable to the Plaintiff, but due to the change of government policy that recommended the special exemption to strengthen the listing requirements by concerns over the invasion of the stock market due to excessive entry of listed companies. Accordingly, the Plaintiff does not constitute “cases where stocks are not listed” as stipulated in the former Regulation of Tax Reduction and Exemption Act.

(4) The Plaintiff initially assessed its assets due to the failure to comply with the government authority’s policies on the encouragement of listing, and the reliance that the company could meet the listing requirements without any difficulties. Moreover, as the listing period has been extended several times due to an indeption, etc., the Plaintiff trusted that the extension of the listing period would continue to be subject to taxation. Nevertheless, the instant disposition that suspended the extension of the listing period without any particular change of circumstances and imposed taxes infringed on the Plaintiff’s legitimate trust.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether it violates the principle of no taxation without law

㈎ 기업공개시의 재평가특례와 관련된 감면규정의 개정경과

① The former Regulation of Tax Reduction and Exemption Act amended by Act No. 3939, Nov. 28, 1987 (amended by Act No. 3939) newly established Article 56-2, which intends to list stocks in disposal, may conduct revaluation under the Assets Revaluation Act: Provided, That where a corporation which conducted revaluation fails to list stocks within two years from the date of revaluation, the revaluated already conducted shall not be deemed revaluation under the Assets Revaluation Act.

② However, with the amendment of the Act on the Regulation of Tax Reduction and Exemption (Act No. 4285) on December 31, 1990, the former provisions of Article 56-2 were deleted to eliminate the system of "special cases of revaluation at the time of business disclosure" by eliminating the former provisions of Article 56-2, and, in order to regulate the revaluation of assets already implemented, the supplementary provisions of this case stipulate that "Transitional measures, etc. concerning special cases of revaluation at the time of business disclosure" shall not be deemed revaluation under the Assets Revaluation Act for corporations which conducted revaluation pursuant to the main sentence of Article 56-2 (1) prior to the enforcement of this Act, unless their stocks are listed within the period set by the President from the

③ Accordingly, Article 66 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (Presidential Decree No. 13202, Dec. 31, 1990) newly established Article 66 and set the “period prescribed by the Presidential Decree” as “five years,” and Article 109 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (Presidential Decree No. 14084, Dec. 31, 1993) amended on December 31, 1993 as “eight years,” Article 109 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (Presidential Decree No. 15197, Dec. 31, 1996) amended on December 31, 199 as “10 years,” Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act (Presidential Decree No. 15976, Dec. 13, 198; Presidential Decree No. 10138, Oct. 13, 1993).

④ Meanwhile, the former Regulation on Tax Reduction and Exemption Act was amended by Act No. 4666 on December 31, 1993 and enforced on January 1, 1994. The former Regulation on Tax Reduction and Exemption Act, like the former Regulation on Tax Reduction and Exemption Act, did not adopt the system, and Article 2 of the Addenda of the former Regulation on Tax Reduction and Exemption Act provides that the amended Regulation on Income Tax and Corporate Tax shall apply from the first taxable year beginning after this Act enters into force. However, the former Regulation on Tax Reduction and Exemption Act, like the Addenda of the former Regulation on Tax Reduction and Exemption Act, did not have any separate provision on the "Transition for Corporate Revaluation at the time of disclosure."

㈏ 전문개정된 조세감면규제법과 구 조세감면규제법 부칙 제23조 제1항의 관계

① The key issue of the instant case is whether the enforcement of the former Act on the Regulation of Tax Reduction and Exemption becomes invalid due to the enforcement of the Act on the Regulation of Tax Reduction and Exemption, and then whether the provisions of the Enforcement Decree of the Restriction of Tax Reduction and Exemption Act cannot be the basis for the “listed period.”

On December 31, 1993, when the Regulation of Tax Reduction and Exemption Act was "specialized amendment", there is no clear transitional provision such as the supplementary provision of this case in order to regulate "special cases of revaluation at the time of disclosure of public company" which was enforced previously, so causing controversy over the interpretation can be said to be insufficient legislation.

그러나, ㈀ 일반적으로 조세법령이 개정되면서 그 부칙에서 개정조문과 관련하여 별도의 경과규정을 두지 아니한 경우에는 납세의무가 성립한 당시에 시행되던 법령을 적용하여야 하는 점( 대법원 2005. 4. 15. 선고 2003두13083 판결 ), ㈁ 원고 회사의 자산재평가행위는 1990년에 있었으므로, 그에 따른 법인세 납세의무는 일응 추상적이나마 과세기간 즉 1990사업연도가 종료한 때에 성립된다고 할 것인 점( 국세기본법 제21조 제1항 제1호 ), ㈂ 다만 종전의 1987. 11. 28. 개정 조세감면규제법이나 구 조세감면규제법이 재평가에 관한 조세특례를 규정하면서 일정기간 내의 주식상장을 조건으로 하였기에 그 사후관리가 필요하였고, 이 사건 조세감면규제법시행령이나 조세특례제한법시행령 규정들은 모두 위 특례의 조건인 주식의 상장기간의 연장조치에 관한 내용에 불과한 점, ㈃ 전문개정된 조세감면규제법은 부칙 제2조에서 ‘일반적 적용례’로서 「법인세에 관한 개정규정은 이 법 시행(1994. 1. 1.) 후 최초로 개시하는 과세연도분부터 적용한다」고 규정하고 있으므로, 전문개정된 조세감면규제법 중 법인세에 관한 개정규정(종전에 부칙으로 존재하던 ‘기업공개시의 재평가특례’에 관하여 새로 아무런 규정이 없으므로, 이 부분 또한 법개정이 있는 것이라 하겠다)은 1994. 1. 1. 이후 개시되는 과세연도에 관한 법인세에 관해서만 적용되고, 반대로 그 이전의 과세연도(이 사건에서는 1990년이다) 분에 관한 법인세에 대해서는 계속 종전의 구 조세감면규제법의 규율을 받도록 규정하고 있다고 풀이할 수 있는 점, ㈄ 이에 따라, 조세감면규제법 전문개정 당일(1993. 12. 31.) 조세감면규제법시행령도 같이 전문개정되면서 당연히 모법의 근거가 있다는 전제하에 상장기간에 대하여 규정하고 그 기간을 8년으로 연장한 점, ㈅ 그 이후에 개정된 조세감면규제법시행령과 전문개정에 따른 조세특례제한법 시행령 역시 모두 「법률 제4285호 조세감면규제법 중 개정법률 부칙 제23조 제1항 (이 사건 부칙규정)에서 대통령령이 정하는 기간이라 함은 …」이라고 규정하여, 법률의 번호까지 명시하면서 구 조세감면규제법이 그 모법(위임근거)임을 나타내고 있는 점, ㈆ 만약 원고의 주장처럼 「전면개정된 조세감면규제법에서 위 ‘일반적 적용례’ 외에 ‘기업공개시의 재평가특례’에 관한 경과조치 규정을 명시적으로 따로 두지 않았으므로, 종전에 있었던 자산재평가 및 상장기간을 규율하는 규정들은 일거에 실효된다(‘기업공개시의 재평가특례’ 규정은 이미 1990. 12. 31. 개정에서 삭제되었고, 그에 관한 경과규정인 이 사건 부칙규정도 전문개정에 의하여 실효된다)」는 전제에 서게 되면, 이 부분은 모두 법률의 공백상태에 빠지게 되어, 따로 법률에서 새로운 근거규정을 두지 않는 이상 사후관리가 불가능하게 되고(시행령에서 추가로 상장기간의 연장을 하는 것도 불가능해진다), 오히려 위 재평가특례제도 및 상장기간의 유예를 믿어온 법인과 이해관계인의 법적 안정성을 크게 해치게 될 것인 점, ㈈ 더욱이 「이 사건과 같이 과거 재평가특례를 받고도 상장조건을 지키지 못한 법인에 대하여, 원고의 주장과 같이 모법에 명시적 근거가 없다는 이유만으로 과세를 하지 못하게 된다면, 종래 자산재평가를 실시하지 아니한 채 원가주의에 입각하여 성실하게 법인세 등을 신고 납부한 법인이나 구 조세감면규제법령상의 상장기간을 준수한 법인들과 비교하여 형평에 어긋나는 결과를 초래하게 될 것인 점」 등에 비추어 보면, 비록 구 조세감면규제법이 개정되면서 과세근거규정을 삭제하고 부칙에서 경과규정을 두고 있다가 다시 전문개정되면서 그에 관한 근거규정이나 경과규정을 두고 있지 않다고 하더라도, 구 조세감면규제법상의 이 사건 부칙규정은 적어도 전문개정된 조세감면규제법의 시행 이전의 과세연도분에 대한 법인세에 관해서는 여전히 실효되지 아니하고 적용될 뿐만 아니라, 그 규정의 위임에 따라 세부내용(상장기간)을 보충하기 위하여 신설, 개정되는 대통령령 규정들을 규율하는 근거가 된다고 봄이 상당하다.

Therefore, the provisions on the "listed period" under the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act and the Enforcement Decree of the Restriction of Special Taxation Act are valid since they have legal basis under Article 23(1) of the Addenda of the former Regulation of Tax Reduction and Exemption Act.

② As to this, the Plaintiff asserts that the provision of the Addenda before the amendment of the Act becomes null and void if it is a specialized amendment, and argues that it is based on the Supreme Court Decision 2002Du10780 Decided June 24, 2004 and Supreme Court Decision 2001Du1168 Decided July 26, 2002.

However, in the special surtax which is a type of corporate tax that is subject to transfer gains by making the transfer act a requirement of taxation and subject to transfer gains, the Act on the Regulation of Tax Reduction and Exemption prior to the amendment has deleted the provisions on the tax reduction and exemption of the previous special surtax and provided for the transitional provisions thereon, while in the Special Act on the Regulation of Tax Reduction and Exemption, where real estate was transferred after the enforcement of the Special Act on the Regulation of Tax Reduction and Exemption, the Specialized Tax Reduction and Exemption Act on the Regulation of Tax Reduction and Exemption shall be applied as a matter of course to determine whether to exempt the special surtax due to transfer, and in the case where real estate was transferred after the Special Act on the Regulation of Tax Reduction and Exemption has been amended, the previous Act on the Regulation of Tax Reduction and Exemption, which has the transitional provisions on the exemption of the special surtax, shall be deemed to have been invalidated by the enforcement of the Special Act on the Regulation of Tax Reduction and Exemption, barring any special circumstance, and in the case where real estate was transferred after the enforcement of the Special Act on the Regulation of Tax Reduction and Exemption.

As can be seen, each of the above Supreme Court decisions is merely a summary of the "The issue of whether the requirements for taxation and exemption are satisfied shall be based on the law at the time when the requirements are established (transfer)." Even if there are transitional provisions on exemption from taxation in the previous Addenda of the Act, the previous supplementary provisions of the Act will be fully invalidated if the Act was amended, barring any special circumstances" (In short, each of the above Supreme Court decisions expressed the principle of partial application of the previous provisions in a case where taxation or exemption requirements are met after the enforcement of the Special Act, and it does not have ruled that the previous provisions are invalidated and omitted in a case where taxation or exemption requirements were established before the Special Act was enforced). Accordingly, in the instant case, the legal principles of the Supreme Court's decision in the above case cannot be applied as it is at par value

Ultimately, the Plaintiff’s assertion alone does not obstruct the conclusion that the transitional measure provision on the special case of revaluation at the time of corporate disclosure under Article 23(1) of the Addenda of the former Regulation of Tax Reduction and Exemption Act is still effective as to “corporate tax on the portion of the taxable period commenced before the enforcement date of the Specialized Regulation of Tax Reduction and Exemption Act ( January 1, 1994).” The Plaintiff’s assertion contrary to this cannot be accepted.

㈐ 소결론

In rendering the instant disposition, the Defendant based on Article 23(1) of the Addenda of the former Regulation of Tax Reduction and Exemption Act and Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act amended by Presidential Decree No. 17458, Dec. 31, 2001. Each of the above provisions is still effective with respect to the corporate tax taxable period prior to January 1, 1994, the enforcement date of the Regulation of Tax Reduction and Exemption Act, and thus, the instant disposition based thereon does not violate the principle of no taxation without law.

(2) Whether the exclusion period is expired

㈎ 원고는 구 조세감면규제법이 1994. 1. 1.부터 효력이 없음을 전제로, 이 사건 자산재평가와 관련된 법인세의 부과처분의 제척기간은 국세기본법 제26조의2 , 1990. 12. 31. 대통령령 제13202호로 개정된 조세감면규제법시행령에 의하여 상장기간(자산재평가일인 1990. 1. 1.부터 5년) 만료일인 1995. 1. 1.부터 5년이 경과한 2000. 1. 1.자로 도과되었다고 주장한다.

㈏ 그러나 앞서 본 바와 같이 구 조세감면규제법은 여전히 그 효력을 유지하고 있고, 이를 모법으로 한 조세특례제한법시행령(2001. 12. 31. 대통령령 제17458호로 개정된 것) 역시 효력이 있으므로, 상장기간은 2003. 12. 31.까지이다. 그런데 원고 회사가 위 상장기간 내에 주식을 상장하지 아니하였으므로, 이 사건 법인세와 부가세인 방위세의 제척기간의 기산일은 국세기본법시행령 제12조의2 제2항 제3호 소정의 공제 또는 면제받은 국세를 징수할 사유가 발생한 날인 2004. 1. 1.을 기준으로 하여야 한다. 따라서 2004. 1. 16.에 부과된 이 사건 부과처분은 5년의 제척기간 내에 이루어진 것이어서 적법하다. 원고의 주장은 이유 없다.

(3) Whether the Plaintiff’s cause of negligence and taxation requirements are met

㈎ 인정사실

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 4, 5, and 6, the fact that the plaintiff company filed an application for securities registered corporation with the Securities and Exchange on April 16, 1990 to list the stocks on the Korea Stock Exchange. However, as a result of supervising the audit report of the plaintiff company attached to the application, the Securities and Exchange Supervisory Board recognizes the fact that the plaintiff company notified the plaintiff of the result of occasional supervision on August 20, 1990 on the ground that it violated Articles 13 and 65 of the Corporate Accounting Standards by appropriating the refund amount of KRW 215 million on behalf of the plaintiff company, and there is no counter-proof, and the fact that the plaintiff company failed to list the stocks by December 31, 2003 is not a dispute between the parties.

㈏ 판단

Article 56-2 of the previous Regulation on Tax Reduction and Exemption Act (Act No. 3939) and Article 23(1) of the Addenda of the former Regulation on Tax Reduction and Exemption Act only stipulate that where stocks of the Korea Stock Exchange are not listed within 1.0 days from the revaluation date, revaluation already conducted shall not be deemed revaluation under the Assets Revaluation Act. It does not stipulate that “where there is a taxpayer’s cause attributable to the taxpayer” is a premise for not listing stocks. Even if the above provision is interpreted limited to cases where a taxpayer fails to list stocks due to a taxpayer’s cause attributable to the cause attributable to the taxpayer, it shall not be deemed an evaluation under the Assets Revaluation Act. However, according to the above facts, the Plaintiff company was clearly identified by the fact that there was an accounting method, such as appropriating the refund of customs duties from among audit reports of the Plaintiff company after filing an application with the Securities Supervisory Board for listing stocks, and even if the Government strictly demanded the listing requirement due to an excessive supply of the stock market, the Plaintiff company is not liable for its listing requirements, and thus, it cannot be accepted the Plaintiff’s assertion against the Plaintiff’s specific circumstances.

(4) Whether there is a legitimate violation of trust

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 which has been extended has also taken into account the impact on the stock market due to excessive supply of stocks due to the disclosure of the company, and on the other hand, it can be said that the circumstances of the corporation which conducted asset revaluation under the provisions of the Special Regulation of Tax Reduction and Exemption Act have been comprehensively taken into account. However, there are circumstances that the listing period has been extended for several years, and thus, the trust relationship cannot be said to have been formed between the Plaintiff and the Defendant that the corporation which conducted asset revaluation based on the provisions of the Special Regulation of Tax Reduction and Exemption Act or the former Enforcement Decree of the Restriction of Special Taxation Act does not impose corporate tax pursuant to the Regulation of Tax Reduction and Exemption Act for the corporation which conducted asset revaluation on the basis of the provisions of the Special Provision of Tax Reduction and Exemption for Corporate Reassessment. Furthermore, the Plaintiff’s assertion that the listing period of stocks was specified as of December 31, 2003 and that the Plaintiff could not transfer its stocks to the Defendant.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim for revocation is dismissed as it is without merit, and the judgment of the court of first instance is justified and therefore, the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Lee Jae-in (Presiding Judge)