It is reasonable to view that the education tax base means only the amount of revenue generated by transactions that increase net assets.

The revenue amount of this case is substantially attributable to policyholders, not the revenue amount generated by transactions which increase the plaintiff's net assets, and thus does not constitute the education tax base.

Article 4 of the Enforcement Decree of Education Tax Act;

2011Guhap9041 Revocation of Disposition of Refusal to Correction Education Tax

AAA life insurance company

Head of the District Tax Office

September 6, 2013

November 8, 2013

1. The defendant's rejection disposition against the plaintiff on July 16, 2009 against each education tax stated in the annexed Form 1 correction claim column shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is an insurance company that runs an insurance business under the Insurance Business Act.

B. The Plaintiff reported and paid, within the statutory reporting period, education tax, including income, dividend, securities trading profit, foreign exchange trading profit, and other operating profit of the variable insurance special account (hereinafter referred to as the “amount of the instant revenue in total, including income, dividend, dividend, securities trading profit, and other operating profit,”) and excessive appropriation of premiums related to the premium related to the variable insurance (the amount of premiums and profits from the special account of variable insurance before the insurance enters into force, and the amount of premiums received from the customers before the insurance contract enters into force, which is recognized as insurance premium) in the tax base through the education tax period from January 1, 200, 207, 407, and 1 to 4, 2008.

C. On May 29, 2009, the Plaintiff asserted that the Defendant reported and paid the education tax including the amount of the revenue of this case and the amount of excess insurance premium related to the provisional insurance are not included in the education tax base, but did not include it in the tax base, and filed an application for correction of education tax, such as the statement in the correction request form in the attached Table 1 List.

D. On July 16, 2009, the defendant rejected the plaintiff's request for correction on the ground that the revenue amount of this case constitutes the revenue amount of an insurer which is the education tax base (hereinafter "disposition of this case") (the plaintiff's request for correction as to the excessive appropriation amount of insurance premium related to the provisional insurance premium was received).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on September 30, 2009, but was dismissed on December 20, 2010.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 5(1)1 of the former Education Tax Act (amended by Act No. 10407, Dec. 27, 2010; hereinafter the same) provides that the education tax base for an insurer shall be the revenue amount of an insurer. Article 5(3) of the same Act provides that the revenue amount of an insurer shall be the interest, dividend, insurance premium, etc. that the insurer has received, and only the profit which actually belongs to the insurer in accordance with the substance-over principle shall be included in the education tax base. However, the actual accrual of the pertinent revenue is not the

2) The amount-variable insurance special account of an insurance company constitutes an investment trust, one of the collective investment schemes managed by a collective investment business entity. However, according to the corporate accounting standards, a collective investment business entity allows the collective investment business entity to appropriate a deposit received from a customer as a deposit debt so that it can be recognized as a non-profit debt. Moreover, since the beneficiary of the operating profit generated from a collective investment scheme is not a collective investment business entity, the collective investment business entity does not recognize operating profit as profit. Accordingly, it cannot be deemed that the insurance premium of the amount-variable insurance special account and its operating profit

3) According to Article 5(3) of the former Education Tax Act and Article 5 of the former Enforcement Decree of the Education Tax Act (amended by Presidential Decree No. 21296, Feb. 4, 2009) (amended by Presidential Decree No. 21296, Feb. 4, 2009), insurance premiums included in the education tax base shall be calculated by deducting the accumulated amount, such as liability reserves (the amount accumulated to be appropriated for the payment of insurance proceeds, refund money, and contractor's dividends) from the insurance premiums received at the time. However, in cases where insurance premiums and operating profits of the variable insurance special account are deemed to be included in the education tax base, such insurance premiums and operating profits are deemed to be included in the education tax base, due to the decline

4) Therefore, the instant disposition, which was made on different premise, should be excluded from the education tax base, is unlawful.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

C. Determination

1) Article 5(1)1 of the former Education Tax Act provides that "The tax base of education tax for financial and insurance business entities shall be the revenue amount." Article 5(3) provides that "The revenue amount which forms the tax base of education tax for financial and insurance business entities" shall be interest, dividend, commission, guarantee fee, profit from the sale and redemption of securities, insurance premium (the amount accumulated as liability reserve and contingency reserve fund and the amount of reinsurance premium shall be deducted), and the calculation thereof shall be prescribed by Presidential Decree." Article 4(1) of the former Enforcement Decree of the Education Tax Act (amended by Presidential Decree No. 19896, Feb. 28, 2007; Presidential Decree No. 21296, Feb. 4, 2009; hereinafter the same shall apply) shall be the revenue amount received from the financial and insurance business entities (No. 1); insurance proceeds from re-insurance business entities' purchase of new assets (the amount indicated as insurance premium) and profits from re-insurance business entities' purchase of new assets (the amount indicated as insurance premium No. 2); insurance proceeds from foreign currency transactions (the revised). 28).

In light of the language, purport, system, etc. of these regulations, it is reasonable to view that the amount of revenue defined as the education tax base for financial and insurance business entities in Article 5(3) of the former Education Tax Act and each subparagraph of Article 4(1) of the former Enforcement Decree of the Education Tax Act mean only the amount of revenue generated from transactions that increase the net assets of financial and insurance business entities (see Supreme Court Decision 2010Du1013, Nov. 29, 2012).

2) In light of the following circumstances, the revenue amount of this case is substantially attributable to policyholders, and it is not the revenue amount generated from transactions which increase the Plaintiff’s net assets. Thus, it is reasonable to deem that the disposition of this case, which was conducted on a different premise, does not constitute the education tax tax base.

(1) Revised insurance is an insurance contract [Article 108 (1) 3 of the former Insurance Business Act (amended by Act No. 10394, Jul. 23, 2010; hereinafter the same shall apply] under which insurance proceeds vary depending on the performance of asset management [Article 108 (1) 1 of the former Insurance Business Act (amended by Act No. 10394, Jul. 23, 2010; hereinafter the same)] under which a policyholder creates part of the insurance premiums paid and operates it as a special account and allocates investment profits to a contractor according to the performance of the special account, and provides that insurance proceeds and reserve changes during the insurance period [Article 95 (1) 2 of the former Insurance Business Act shall clearly and easily state "important matters concerning rights and obligations arising from insurance solicitation" in an insurance prospectus for insurance solicitation, and Article 42 (1) 1 of the former Enforcement Decree of the Insurance Business Act (amended by Presidential Decree No. 21911, Dec. 29, 2009].

② Relevant Acts and subordinate statutes, such as the Insurance Business Act, distinguish the amount-variable insurance from the general account. In other words, Article 108 (1) 3 of the former Insurance Business Act provides that "any insurance company may set up and operate the special account, which is an account to use all or part of the assets equivalent to the reserve fund separately from other assets, as prescribed by Presidential Decree, in relation to variable insurance," and Article 108 (2) provides that "the insurance company shall handle the assets belonging to the special account separately from assets belonging to other special accounts and other assets." Article 108 (3) provides that "the insurance company may distribute profits belonging to the special account to the policyholders via the special account."

In addition, Article 53 (4) 3 of the former Enforcement Decree of the Insurance Business Act provides that an insurance company shall not incorporate the assets belonging to the special account into a general account (referring to an account that belongs to an insurance contract excluding insurance contracts that belong to a special account) or into another special account or incorporate the assets of a general account into a special account in operating the assets of the special account, and Article 54 (2) provides that an insurance company shall dispose of the profits obtained by deducting the remuneration for operation of the special account and other fees from the operating profits of the variable insurance special account as the shares of policyholders of the special account.

Furthermore, Article 5-6 (1) 3, (5), and (6) 2 of the former Insurance Business Supervision Regulations (amended by Act No. 2009-3 of Jan. 19, 2009) provides that in the case of an amount-variable insurance contract sold by a life insurance company, the revenues and expenses of the amount-variable insurance special account shall be set up and operated as a special account, and the subject of operation of the said special account shall be accumulated premiums (the amount excluding the amount necessary for guaranteeing risks, such as net premiums, death during the pertinent period) and operating profits and losses thereof, and Articles 6-21 subparagraph 1 and 6-23 (2) of the former Insurance Business Supervision Regulations provide that the special account defined as the "special account operated to vest all profits and losses on the amount-variable special account in order to belong to the contractor in whole."

(3) Article 135 (1) of the Indirect Investment Asset Management Business Act (amended by Act No. 8635 of Aug. 3, 2007, Article 2 of Addenda to the Financial Investment Services and Capital Markets Act; hereinafter referred to as the "Indirect Investment Act") provides that any person who is an insurance company licensed to operate an asset management company under the Insurance Business Act may run only the business provided for in Article 4 (2) 1 and 2, and the business provided for in Article 4 (2) 1 and 2. In this case, the business provided for in Article 4 (2) 1 and 2 shall be limited to the special account under Article 108 (1) 3 of the Insurance Business Act; the special account shall be deemed an investment trust under this Act; the collective investment business entity shall be limited to the trust business entity that obtains authorization from the trust business entity for the operation of the special account and the fund changed from the trust business entity under Article 251 (1) of the Financial Investment Services and Capital Markets Act (hereinafter referred to as the "indirect Investment Services and Capital Markets Act"), and Capital Markets Act, etc.

However, the Education Tax Act provides an asset management company under the Indirect Investment Act (collective investment business entity under the Capital Markets Act after the repeal of the Indirect Investment Act) as one of the taxpayers of education tax (see Article 3 subparag. 1 and [Attachment] of the former Education Tax Act, and Article 3 subparag. 1 and [Attachment] of the former Education Tax Act (amended by Act No. 9262, Dec. 26, 2008). In such cases, customer deposits, the amount of which the truster received from investors, are not provided as the amount of revenue of the financial and insurance business entities, which are the tax base of education tax (in addition, the corporate accounting standards determined by the Korea Accounting Institute, should include the customer company's deposits received from investors as the deposit liabilities, which is one of the liabilities of investors).

Meanwhile, considering the above concept of investment trust, Article 103 (1) of the Indirect Investment Act provides that an asset management company of investment trust shall distribute profits accrued from the management of collective investment property to indirect investors in cash or in newly issued collective investment securities within the scope of profits accruing from the management of the indirect investment property, and the main text of Article 242 (1) of the Capital Markets Act provides that "a collective investment business entity of investment trust shall distribute profits accrued from the management of collective investment property in cash or in newly issued collective investment securities to investors", the truster's profits accrued from the management of the fund from investors shall belong to investors, not to the truster or the collective investment business entity.

Therefore, it is difficult to view that the truster's deposits received from investors, profits accrued from the management of the deposits, and premiums and operating profits of the same and similar variable insurance special account are the revenue amount of the financial and insurance business entity, which is the education tax base.

④ Article 5(2) of the Corporate Tax Act provides that the revenue and expenditure belonging to the trust property of a corporation subject to the Capital Markets Act (amended by Act No. 9267 of Dec. 26, 2008, the Trust Business Act and the Indirect Investment Act) shall not be deemed to be the revenue and expenditure belonging to the corporation. However, the current provision concerning corporate tax, which does not apply mutatis mutandis under the Education Tax Act, provides that the revenue and expenditure belonging to the variable insurance special account shall not be deemed to be the revenue and expenditure belonging to the corporation, shall be deemed to be the revenue and expenditure of the insurance company. However, since the above provision concerning corporate tax and does not apply mutatis mutandis under the Education Tax Act, the revenue and expenditure accruing from the variable insurance special account

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.