Cho Jae-2016-west-3579 ( December 29, 2016)

Article 55 (2) of the Corporate Tax Act cannot be interpreted to apply to the calculation of corporate tax on an extinguished corporation at the time of merger.

It is reasonable to interpret that Article 55 (2) of the Corporate Tax Act cannot be applied in calculating corporate tax on an extinguished corporation at the time of merger exceeds the limit of the objective interpretation of the tax law.

Article 55 of the Corporate Tax Act

2017Guhap52658 Disposition of revocation of refusal to correct corporate tax

Bright Industry Ltd.

○ Head of tax office

May 18, 2017

June 1, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection disposition of correction of KRW 56,520,200 for the business year 2016 against the plaintiff on August 31, 2016 is revoked.

1. Details of the disposition;

가. 원고(변경 전 상호 : ▲▲▲▲▲ 주식회사)는 1971. 3. 11. 설립되어 주택건설업 등을 영위하는 법인인데, 2016. 1. 6. ■■실업 주식회사(이하 '■■실업'이라 한다)를 흡수합병(이하 '이 사건 합병'이라 한다)하였고 ■■실업은 같은 날 해산하였으며, ■■실업에 대한 이 사건 합병으로 인한 법인세법 제44조 제1항, 구 법인세법 시행령(2017. 2. 3. 대통령령 제27828호로 개정되기 전의 것) 제80조 제1항 제2호 소정의 합병양도차익은 4,331,828,691원{(합병으로 인하여 피합병법인의 주주 등이 지급받는 합병법인의 주식 등의 가액 및 금전이나 그 밖의 재산가액의 합계액 0원 + 합병법인이 납부하는 피합병법인의 법인세 및 그 법인세에 부과되는 국세와 법인세분 지방소득세의 합계액 665,776,504원) - (피합병법인의 순자산 장부가액 -3,666,052,187원)}이었다.

나. 원고는 피합병법인인 ■■실업의 2016. 1. 1.부터 같은 달 6.까지의 사업연도(이하 '이 사건 사업연도'라 한다) 법인세에 관하여, 위 합병양도차익 4,331,828,691원을 합병등기일이 속하는 이 사건 사업연도의 익금에 산입하고, 이월결손금 755,778,693원을 공제하여 과세표준을 3,576,009,998원으로 산정한 후, 법인세법 제55조 제2항에 따라 위 과세표준을 사업연도의 월수(1월 미만의 일수는 1월이다)로 나눈 금액에 12를 곱하여 산출한 금액 42,912,119,976원을 위 사업연도의 과세표준으로 본 후 이를 12로 나눈 금액인 751,722,199원을 산출세액으로 하여, 2016. 4. 30. 피고에게 이 사건 사업연도의 법인세 751,772,199원을 신고・납부하였다.

C. On July 1, 2016, the Plaintiff filed a request for correction to the Defendant for refund of KRW 56,520,200, on the ground that the corporate tax did not apply Article 55(2) of the Corporate Tax Act when calculating corporate tax on the ground that “the report of corporate tax base on the transfer margin of the merged corporation is not a profit from the corporate business, but a gain accrued without a temporary connection with the corporate business at the stage of the merger for 12 months since it is an obvious error to regard it as a continuous business activity for 695,201,99.” However, on August 31, 2016, the Defendant rejected the Plaintiff’s request on the ground that there is no reason to rectify pursuant to Articles 8(1) and 55(2) of the Corporate Tax Act, etc. (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 29, 2016, but was dismissed on December 29, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 (including branch numbers, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 55 (2) of the Corporate Tax Act provides for the correction of the problem of distorted the progressive structure of corporate tax by calculating the amount of calculated tax per unit rather than the case of a corporation whose business year is less than one year, since the tax base of a corporation whose business year is less than one year is shorter than the short one, as it is applied to the tax base of a corporation whose business year is less than one year. In applying the above provision, it is limited to the case of making up the tax base the profit, loss, interest income, lease income, etc. which vary depending on the business period of a corporation, and the case of constituting the tax base only the amount of disposable income irrelevant to the business period of a corporation, the above provision shall not be applied.

The tax base of the instant business year of a merged corporation consists of only the transfer marginal profits accruing from the merger between the Plaintiff and the merged corporation, and this is a single-time occurrence regardless of the head of the business year, and thus, Article 55(2) of the Corporate Tax Act cannot be applied. Thus, the instant disposition on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 8 (2) of the Corporate Tax Act provides that where a domestic corporation is dissolved due to a merger or division (including a division and merger; hereinafter the same shall apply) during the business year, the period from the date of such business year to the date of the registration of the merger or the date of the registration of the division shall be deemed one business year of the dissolved corporation. According to Article 55 (2) of the Corporate Tax Act, corporate tax on income for each business year of a domestic corporation with less than one year shall be calculated by applying Article 13 for the business year divided by the number of months in the business year (the amount obtained by subtracting a loss carried forward, non-taxable income, or income deduction within the scope of income) by 12; the amount calculated by multiplying the amount calculated pursuant to paragraph (1) (where the tax base is less than 200 million won, 10/100 of the tax base; where the tax base is more than 200 million won to 20 billion won to 200 billion won to 200 million won to 200 million won; the number of months calculated by applying the tax rate of 200 billion won to each business year.

Meanwhile, under the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 2009). In addition, in cases where it is necessary to clarify the meaning through mutual interpretation between the laws and regulations, the interpretation of tax laws and regulations may be made within the scope that does not undermine the legal stability and predictability oriented by the principle of no taxation without the law.

In light of the following circumstances, it is reasonable to view that the interpretation that Article 55(2) of the Corporate Tax Act cannot be applied in calculating corporate tax on an extinguished corporation when a merger takes place, as alleged by the Plaintiff, exceeds the bounds of the interpretation of the tax law. Therefore, the Plaintiff’s assertion is without merit.

(1) Articles 8(1) and 55(2) of the Corporate Tax Act provide that where a business year is less than one year in order to maintain the progressive tax rate of corporate tax, the amount of tax calculated by applying the progressive tax rate by converting the tax base into a year shall be calculated proportionally based on the number of months in the relevant business year.

② Article 55(2) of the Corporate Tax Act does not stipulate that the application of the above provision is different from those related to a business term group.

③ In accordance with the Plaintiff’s assertion, it is ambiguous to distinguish taxable income from the income subject to taxation, and in a case where the same is mixed with those related to a group of business periods in the corporate tax base, there is an unreasonable reason that it is impossible to calculate corporate tax pursuant to Article 55(2) of the Corporate Tax Act.

④ The provision of the taxation requirements and the exceptional provision of non-taxation or exemption requirements under the tax law is deemed to fall under the legislative discretion of the legislator unless the provision is clearly unreasonable (see, e.g., Supreme Court Decision 2010Du6793, Jan. 27, 2011). The application of the progressive tax rate by legislators, which falls under the taxation requirements, falls under the legislative discretion, thereby falling under the scope of applying the progressive tax rate by legislators. Therefore, in a case where a business year is less than one year, it is difficult to deem that the amount of tax calculated by applying the progressive tax rate by converting the tax base into a year, to calculate corporate tax by dividing it based on the number of months in the pertinent business year,

3. Conclusion

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