[1] Whether the determination of the refund tax pursuant to the retroactive deduction of loss under Article 38-2 of the former Corporate Tax Act constitutes "determination or correction of corporate tax, which is a requirement for refund of resident tax to be imposed corporate tax under Article 178 (2) of the former Local Tax Act (negative)

[2] In a case where a refund decision is made under Article 38-2 of the former Corporate Tax Act, whether the resident tax subject to corporate tax should be naturally refunded (negative)

[1] Retroactive deduction of loss under Article 38-2 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) is a system specifically recognized for the purpose of tax policy for small and medium enterprises. In this case, upon a taxpayer’s application, the head of the competent tax office determines the amount of tax refund by determining whether the substantial requirements, such as the occurrence of losses carried forward, and whether the procedural requirements are met, and thus, the nature of the above amount of tax refund cannot be deemed to have the nature of erroneous payment or erroneous payment. The determination and correction of corporate tax under Article 178(2) of the former Local Tax Act (amended by Act No. 5615 of Dec. 31, 1998) refers to the case where the taxpayer did not make an investigation of the tax base return and made a tax base return, but the determination of the amount of tax refund under Article 38-2 of the former Corporate Tax Act cannot be deemed to fall under the determination and correction of corporate tax under Article 178(2) of the former Local Tax Act.

[2] Although the resident tax subject to corporate tax is the tax base of corporate tax, it is different from the corporate tax, which is a local tax, in terms of its assessment subject, taxation requirements and procedures, etc., and thus, even if a decision of refund was made under Article 38-2 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998), the resident tax subject to corporate tax should not be refunded as a matter of course.

[1] Article 38-2 (see current Article 72) of the former Corporate Tax Act (Amended by Act No. 5581, Dec. 28, 1998); Article 178 (2) of the former Local Tax Act (Amended by Act No. 5615, Dec. 31, 1998); Article 178 (2) of the Local Tax Act; Article 178 (2) of the Addenda (Amended by Act No. 5615, Dec. 31, 1998); Article 38-2 of the former Corporate Tax Act (Amended by Act No. 5581, Dec. 28, 1998); Article 178 (2) of the former Local Tax Act (Amended by Act No. 5615, Dec. 31, 1998); Articles 172 and 173 of the Local Tax Act

[2] Supreme Court Decision 83Nu140 delivered on June 28, 1983 (Gong1983, 1208), Supreme Court Decision 93Nu11463 delivered on August 24, 1993 (Gong1993Ha, 2675), Supreme Court Decision 94Da34760 delivered on October 25, 1994 (Gong1994Ha, 3106), Supreme Court Decision 95Nu1545 delivered on September 24, 1996 (Gong196Ha, 3234)

Co., Ltd.

Suwon-gu Busan Metropolitan Government (Attorney Han-soo, Counsel for defendant-appellant)

Busan High Court Decision 200Na58 delivered on May 3, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The principle of no taxation without law, or 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 (see, e.g., Supreme Court Decision 97Nu4173, Oct. 24, 1997); and Article 38-2 of the former Corporate Tax Act (amended by Act No. 5581, Dec. 28, 1998; hereinafter the same) is a system specifically recognized for tax policy purposes for small and medium enterprises, and the right to claim a refund of the amount of refund can only be determined by the head of the competent tax office based on the determination of whether the amount of the tax should meet the substantive and procedural requirements, such as the occurrence of losses carried out by the taxpayer at the request of the taxpayer, and thus, the nature of the above amount of refund cannot be deemed to have the nature of the tax amount erroneously or erroneously, and even if the amount of refund can not be deemed to have changed from 97Da1781, Dec. 31, 1998.

In addition, although the resident tax subject to corporate tax is the tax base of corporate tax, it is different from the corporate tax, which is a local tax, in terms of its assessment subject, taxation requirements and procedures (see Supreme Court Decision 95Nu15445, Sept. 24, 1996). Thus, even if a refund decision under Article 38-2 of the former Corporate Tax Act was made, the resident tax subject to corporate tax should not be refunded as a matter of course.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the refund of resident tax subject to corporate tax, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)