Seoul High Court-2012-Nu-23268

Since it falls under the grace period for small and medium enterprises under the Restriction of Special Taxation Act.

The plaintiff could be regarded as a small or medium enterprise if the former Enforcement Decree of the Act was enforced, but since the Enforcement Decree of the Act on the Promotion of Special Taxation was enforced on January 1, 2006, the plaintiff could not be regarded as a small or medium enterprise, it constitutes "when it comes not to be a small or medium enterprise due to the amendment of Article 2 (5) of the Enforcement Decree of the Act

Article 2 (1) of the Restriction of Special Taxation Act

Supreme Court Decision 2013Du4149 (No. 23, 2015)

00. Head of tax office

00.Korea Stock Company

Seoul High Court 2012Nu23268

2015.23

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

1. Article 2(1) of the former Enforcement Decree of the Restriction of Special Taxation Act provides for special taxation on small and medium enterprises in Chapter II, Section 1, etc., and Article 2(1) of the former Enforcement Decree of the Restriction of Special Taxation Act provides for the requirements for the type, size, independence, etc. of small and medium enterprises subject to such special taxation requires that the actual independence of the requirements of independence should be satisfied under Article 3(2) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises. Meanwhile, in applying Article 2(5) of the former Enforcement Decree of the Restriction of Special Taxation Act, if a company ceases to be a small and medium enterprise due to the amendment of the attached Table of the Enforcement Decree of the Framework Act on Small and Medium Enterprises, it shall be deemed a small and medium enterprise for the taxable

Meanwhile, Article 3 subparag. 2 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises provides that a corporation under Article 3 subparag. 1 (b) shall not own not less than 30/100 of the total number of issued and outstanding shares as one of the standards for actual independence of the ownership and management of small and medium enterprises. Article 3 subparag. 1 (b) of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises provides that a stock-listed corporation or Association-registered corporation under Article 2 of the Securities and Exchange Act shall be a corporation whose total amount of assets is not less than 500 billion won.

2. The court below found that the Plaintiff, a non-listed corporation, filed a corporate tax return for the business year 2007 corporate tax of 10% investment in 2007, and applied for tax exemption or reduction of corporate tax under the former Restriction of Special Taxation Act. However, the total assets indicated on the 00 electronic balance sheet were KRW 365.7 billion at the end of the business year 2004, and the total assets indicated on the 00 electronic balance sheet were increased to KRW 55.47 billion at the end of the business year 2005, and the Defendant imposed corporate tax of this case on February 14, 201, on the ground that the Plaintiff failed to meet the independence requirements of the small and medium enterprises under Article 2(1)3 of the Enforcement Decree of the Restriction of Special Taxation Act, and Article 3 subparagraph 2 of the Enforcement Decree of the Amendment of the Restriction of Special Taxation Act from the business year 2006.

Then, the court below determined that the corporate tax disposition of this case was unlawful on the ground that the amendment of the attached Table of the Enforcement Decree of the Framework Act on Small and Medium Enterprises under Article 2(5) of the former Enforcement Decree of the Restriction of Special Taxation was made on the following grounds: 00 electronicss, the parent company, were not listed corporations, and their total assets were more than 50 million won, but they were not small and medium enterprises from January 1, 2006, which was the date following the last day of the business year 2005 when the Enforcement Decree of the Framework Act on Small and Medium Enterprises was enforced.

Examining the record in light of the aforementioned provisions and relevant legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on interpretation and application of Article 2(5) of the Enforcement Decree of the Restriction

In addition, the remaining grounds of appeal are related to the judgment of the court below's additional determination, and the judgment of the court below that the plaintiff was postponed as a small and medium enterprise in the year 2006 pursuant to Article 2 (5) of the former Enforcement Decree of the Restriction of Special Taxation Act is justified, so the legitimacy of the argument cannot affect the conclusion of the judgment, and thus,

3. 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.