Cho Jae-2014-west-3751 (2015.09)

Even if the report was filed with the trust and notification of the general provisions that have not been deleted at the time of corporate tax, there is no justifiable reason to exempt the additional tax.

The General Rules of the Corporate Tax Act does not mean that there is any justifiable reason that the Plaintiff is not liable to breach of its duty, solely on the ground that there is no law that is effective to bind the court or the citizens, and the relevant General Provisions are not deleted.

Article 48 of the Framework Act on National Taxes shall be reduced or exempted.

2015Guhap72825 Revocation of Disposition of Imposition of Additional Tax

○ ○ Private Teaching Institutes

○ Head of tax office

December 18, 2015

January 22, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of penalty tax △△△△ in the corporate tax belonging to the business year 2009 against the Plaintiff on January 10, 2014 is revoked.

1. Details of the disposition;

A. The Plaintiff, as an educational foundation under the Private School Act, operated the △ Motor Institutes and ○ Motor Institutes for Profit-making business, and the Plaintiff’s business year from March 1 of the previous year until February 28 of the previous year.

B. On March 26, 1998, the Plaintiff sold the ○○○○○○○○○○○ on the basis of the sale of the ○○○○○○○○○○○ on January 5, 1999. Upon filing a corporate tax return for a business year 1999, the Plaintiff included an amount equivalent to KRW 00 billion, which is the difference between the sales price of each of the said ○○○○○○○ and the book value, as a tangible asset disposal profit, as well as, setting KRW 00 billion as a reserve for the proper purpose business, and appropriated it as an expense for non-business purposes.

C. The Plaintiff appropriated the reserve fund for proper purpose business as deductible expenses by the fifth anniversary of the end of the business year 1999 and included ○○○○○, which was not used for the proper purpose business, in the gross income by appropriating the reserve fund for proper purpose business as non-business income at the time of filing a corporate tax return in 2004, and at the same time, ○○○ won

D. The Plaintiff again appropriated ○○○○○○ that was not used for the proper purpose business by the fifth anniversary of the end of the business year 2004 and included it in the gross income by appropriating it as non-business earnings at the time of filing a corporate tax return for the business year 2009, and at the same time, re-established ○○○○○ as the proper purpose business reserve fund and appropriated it

E. From June 19, 200 to August 3, 200, 200, the director of the regional tax office of ○○○○○○○○○○○ (including additional tax) who transferred the reserve fund for proper purpose business to the reserve fund for proper purpose business in 2009 and appropriated it as the reserve fund for inclusion in deductible expenses on the ground that the Plaintiff was excluded from the income subject to the establishment of the reserve fund, but notified the Defendant of the fact that the Plaintiff transferred it to the reserve fund for proper purpose business in 2009 and appropriated it as the deductible expenses. Accordingly, on January 10, 2014, the Defendant notified the Plaintiff of the correction and notification of the amount of ○○○○ (including additional tax) corporate tax for the business year 2009 (hereinafter “instant disposition of imposition of corporate tax”).

F. On June 9, 2015, the Plaintiff filed an appeal with the Tax Tribunal on the imposition of penalty tax (hereinafter referred to as “instant imposition of penalty tax”), and the Tax Tribunal dismissed the Plaintiff’s appeal.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 3 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

A. The plaintiff filed a corporate tax return for 2009 business year under the General Rules of the Corporate Tax Act (hereinafter referred to as "Common Provisions of this case"), and the above General Rules were deleted only on November 10, 2009. The plaintiff did not conflict with the Corporate Tax Act and the Enforcement Decree of the Corporate Tax Act and did not conflict with the common rules of this case in force at the time of filing a corporate tax return for business year 2009 and the relevant rules (hereinafter referred to as "the rules of this case") are lawful to set the reserves for proper purpose business included in the amount of the returned reserves for proper purpose business in the amount of the business for profit in 2009 under the common rules of this case and the relevant rules (hereinafter referred to as "the rules of this case"). Thus, the defendant's disposition of imposing the corporate tax of this case in itself is unlawful, and therefore, the disposition of imposing the additional tax of this case must be revoked (hereinafter

B. The Plaintiff did not change the Corporate Tax Act, the Enforcement Decree, the General Rules of this case, and the relevant regulations concerning the reserve fund for proper purpose business until the Plaintiff fulfilled the report of corporate tax in 2009, and there were justifiable grounds for not being able to cause the Plaintiff’s failure to perform the Plaintiff’s duty under the statutory system. Therefore, the disposition imposing the penalty tax in this case is unlawful (hereinafter “

3. Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

4. Determination

A. Judgment on the first argument

1) Article 29(1) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter referred to as the "former Corporate Tax Act") provides that "where a non-profit domestic corporation appropriates reserve funds for proper business purposes as deductible expenses in order to use them for the proper purpose business of the corporation or designated donations (hereafter referred to as "fixed purpose business, etc." in this Article) in each business year, they shall be included in deductible expenses within the scope of the sum of the amounts under each of the following subparagraphs when calculating the amount of income for the business year," while providing for interest income and dividend income in subparagraphs 1 through 3, and "amount calculated by multiplying the amount of income generated from profit-making business other than subparagraphs 1 through 3 by 50/100".

Meanwhile, Article 29 (3) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22035, Feb. 18, 2010; hereinafter "former Enforcement Decree") provides that "where a non-profit domestic corporation with a balance of the reserve fund for proper purpose business included in deductible expenses under paragraph (1) falls under any of the following subparagraphs, the balance shall be included in gross income in calculating the income amount for the business year in which the relevant cause occurs," and "where the reserve fund for proper purpose business is not used for proper purpose business (limited to the balance not used within five years) by the date on which five years have passed after the end of the business year in which the reserve fund for proper purpose business was appropriated as deductible expenses" as one of the reasons to be included in gross income. In addition, Article 29 (7) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 22035, Feb. 18, 2010; hereinafter "the former Enforcement Decree") provides that "income generated from profit-making business" in Article 29

In full view of the above provisions, even if there are incomes which are subject to corporate tax, such as interest income and dividend income in a non-profit domestic corporation and income generated from profit-making business in the concerned business year, if the concerned corporation intends to appropriate them as reserves for its proper purpose business and use them for its proper purpose business within five years, it shall be allowed to include them in the calculation of losses, and where it is not used for its proper purpose business within five years, it shall be exempted from corporate tax, and where the exempted reserves for proper purpose business is not used for its proper purpose business within five years, it shall be withdrawn from corporate tax exemption and shall be imposed corporate tax again. This is not used for profit-making business or for holding assets which are not directly related to the proper purpose business, the legislative purpose of the former Corporate Tax Act is to use them as soon as possible for

2) According to the general rules of the Corporate Tax Act, with regard to the scope of income subject to inclusion of the reserve fund for essential business in deductible expenses, the "income accrued from profit-making business under Article 29 (1) 4 of the Corporate Tax Act" concerning the scope of income subject to inclusion of the reserve fund for essential business in deductible expenses shall include the amount included in gross income because a non-profit domestic corporation which has included the reserve fund for essential business in deductible expenses fails to use it for the proper purpose business or designated donation within the period stipulated in Article 29 (3) 4 of the Corporate Tax Act, within the period stipulated in Article 29 (3) 4 of the same Act, and it was deleted on November 10, 2009, and the National Tax Service Inquiry (Law No. 460-3783, Dec. 5, 1998) also includes the balance not used for the proper purpose business or designated donation within five years after the non-profit corporation included the amount included in gross income under Article 12-2 (2) of the Enforcement Decree of the Corporate Tax Act.

However, the general rule of the Corporate Tax Act is merely an administrative rule that issued the criteria for interpretation and enforcement of the tax law within the tax authority, and it is not a law that has the effect of binding force on the court or the people (see, e.g., Supreme Court Decisions 2005Du12718, Jun. 14, 2007; 92Nu7580, Dec. 22, 1992). The questioning inquiry by the National Tax Service, even if it was externally announced as an established rule, is merely an expression of opinion on the interpretation of the tax law that is generally published against an unspecified taxpayer, and thus, it cannot be deemed that such an act is not always lawful, and whether it is legitimate should be determined based on the relevant laws and regulations, such as the binding force on the general public.

Article 56 (3) of the former Enforcement Decree limits income generated from profit-making business under Article 29 (1) 4 of the former Corporate Tax Act to "income amount generated from profit-making business in the pertinent business year". Article 3 (3) 1 through 6 of the former Corporate Tax Act and Article 2 of the former Enforcement Decree stipulate the scope of profit-making business of non-profit domestic corporations. Where a non-profit domestic corporation which has included reserves in its deductible expenses fails to use them for its proper purpose business or designated donations within five years, such reserves are not included in the scope of "profit-making business" under the former Corporate Tax Act and the former Enforcement Decree, and such amounts can be included in the "income generated from profit-making business" and it can be again included in the deductible expenses by establishing them as proper purpose business for profit-making business under Article 29 (1) 4 of the former Corporate Tax Act, and in light of the legislative purport of the above provision, it cannot be seen that the non-use reserves for profit-making business cannot be included in the amount of income subject to subparagraph 1 of Article 3 of the former Corporate Tax Act.

Therefore, the general provisions of this case and the established rules of this case are included in the "income from profit-making business" under Article 29 (1) 4 of the former Corporate Tax Act. Thus, it cannot be deemed that the interpretation of Article 29 of the former Corporate Tax Act and Article 56 of the former Enforcement Decree of the Corporate Tax Act is proper. Thus, the defendant's disposition imposing the corporate tax of this case is lawful, on the ground that the amount of earnings from the reserve fund for proper purpose business within five years under the former Corporate Tax Act and the former Enforcement Decree is excluded from the amount of the reserve fund for proper purpose business to be used as the reserve fund for proper purpose business in the business year 2009 by transferring the plaintiff to the reserve fund

3) The Plaintiff’s assertion on this part is without merit.

B. Judgment on the second argument

1) Under the tax law, where a taxpayer violates various obligations, such as a return and tax payment, under the law without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an additional tax is an administrative sanction imposed as prescribed by the law, and the taxpayer’s intentional and negligent acts do not constitute justifiable grounds that do not constitute a breach of duty (see, e.g., Supreme Court Decisions 2001Du4689, Nov. 13, 2002; 2002Du10780, Jun. 24, 2004).

2) According to the purport of this case, it is recognized that the general rules of this case and the rules of this case were not deleted at the time of the plaintiff's return of corporate tax for 209 business year. However, the following circumstances are clearly prescribed as i.e., income generated from profit-making businesses under the former Corporate Tax Act and the Enforcement Decree of the Corporate Tax Act as 'income amount generated from profit-making businesses', which will be included in deductible expenses', i.e., the revised 20 years old 7 years old 20 years old 20 years old 7 years old 7 years old 7 years old 20 years old 7 years old 7 years old 20 years old 7 years old 20 years old 7 years old 7 years old 7 years old 20 years old 7 years old 20 years old 7 years old 20 years old 7 years old 20 years old 7 years old 20 years old 7 years old 20 years old 7 years old 7 years old 20 years old 20 years old 7 years old 7 years old 20 years old .

3) Therefore, the Plaintiff’s assertion on this part is without merit.

5. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.