Early High Court Decision 2013J 3306 (O6.03)

Whether the division of this case is qualified division, and whether the disposition of this case is contrary to the principle of trust protection and the principle of good faith.

The instant division is not a comprehensive transfer of claims and obligations, but a qualified division is not a qualified division, and there was no expression of public opinion, so the principle of protection of trust does not apply.

Article 46 of the Corporate Tax Act

Incheon District Court 2014Guu2373 (2015.04.02)

The method of division by classifying the bills to be received at the time of division into difficult assets

did not succeed to the person.

In addition, after the division of this case, the plaintiff 00 corporation from August 31, 2007 to September 10, 2007, which was after the division of this case

Temmmmm Co., Ltd. in total amounting to KRW 85,608,420 from 00, and it received by the plaintiff

was processed in the bill account to be received.

B) For a division of a corporation, the corporate tax on the gains from the transfer of assets arising from the division.

In principle, however, Articles 47 and 46(1) of the Corporate Tax Act are applicable to physical division.

the registration date for the business year in which the registration date for the transfer of assets

The special taxation that can be included in deductible expenses in calculating the acquisition amount shall be prescribed, and the special taxation shall be registered in installments.

A domestic corporation that has been engaged in business for not less than five consecutive years as of the date under the conditions as prescribed by the Presidential Decree.

Article 82 (3) of the Enforcement Decree of the Corporate Tax Act provides that "the division shall be made" and "Presidential Decree" shall apply.

assets and liabilities of a business division as one of the requirements corresponding to "divisions as prescribed by this subsection."

not change the assets or the debtor jointly used, unless the change of such assets or the debtor is made.

Exceptions prescribed by the Ordinance of the Ministry of Finance and Economy with assets, liabilities, etc. which are difficult to divide;

- - the Corporation.

C) According to the above facts, the bill of this case is placed in the synthetic resin business division.

Since it was obtained, it shall be regarded as the unique assets of the synthetic resin business division, and even if the plaintiff's assertion

be paid from synthetic resin business division with bills acquired from other business sections such as the foregoing.

business in a single company, even if such business is settled or there is an objection thereto;

It is merely an issue of settlement between departments, which is merely a mere part of the division, to receive the bill of this case on this ground.

It can not be seen as a "property jointly used" in all business sections.

In addition, the bill to be received in this case can be easily transferred by endorsement to a corporation established by division.

Since it is of the nature that it is difficult to divide, it constitutes a "property difficult to divide" as prescribed by the above law.

shall not be effective.

Ultimately, in the course of the division of this case, the bill received by the Plaintiff as the assets of synthetic resin division

not succeeded to a corporation established by division of B shall be subject to the exception of the comprehensive succession prescribed in the above statute.

Since the division of this case does not constitute physical division meeting the requirements under Articles 47(1) and 46(1) of the Corporate Tax Act, this part of the Plaintiff’s assertion is without merit.

2) Determination on the assertion on the principle of trust protection and the principle of good faith

A) Generally, the principle of trust and good faith for tax authorities' acts in tax law relations

To apply, first, a statement of public opinion that the tax authority is the subject of taxpayer trust.

The order shall be given, and the second, the taxpayer shall not be responsible for the taxpayer's reliance on the taxpayer's reliance on the tax authority's reliance on the expression of opinion, third, the taxpayer shall trust the expression of opinion and act accordingly. Fourth, the tax authority's disposition against the above expression of opinion shall result in infringing the taxpayer's interest. On the other hand, the provisions and contents of tax-related Acts and subordinate statutes, administrative rules themselves, or the response of the National Tax General Counseling Center does not constitute the public expression of opinion by the tax authority (see, e.g., Supreme Court Decisions 2001Du403, Sept. 5, 2003; 2007Du3107, Apr. 23, 2009).

B) Each entry in the health care unit, Gap evidence 11 (including paper numbers), and 12 with respect to the instant case

In full view of the purport of the entire pleadings, the case where the plaintiff succeeded to the assets and liabilities of the divided business division in the course of human division of corporations prior to the division of this case except for some assets.

If a separate project is possible, it shall meet the requirements under Article 82 (3) 2 of the Enforcement Decree of the Corporate Tax Act.

In the application of Article 82(3)2 of the Enforcement Decree of the Corporate Tax Act (hereinafter “Enforcement Decree”) by questioning the National Tax Service on December 24, 2003, the National Tax Service’s established rules (hereinafter “No. 46012-12181”), which is deemed to be divided, the Plaintiff received cash assets (cash, deposits, securities, bills, etc.) and bills from the National Tax Service on July 28, 2008, when it is difficult to divide because they fall under the assets and liabilities jointly used in the division and the remaining business sector, the Plaintiff may recognize the fact that the Plaintiff received the reply (corporate tax and corporate tax-1767) from July 28, 2008.

However, the National Tax Service rendered on December 24, 2003, asserting that the plaintiff trusted before the division of this case.

tax authority's internal administration of the tax authority to issue the criteria and enforcement criteria of tax law interpretation.

It is merely a rule and does not constitute a public opinion list of the tax authorities in itself.

v. In the case of a personal division, the above established rules shall have interest accruing from loans succeeded by the corporation established through division.

The division of this case is related to whether it can be recognized as the costs set forth in the Corporate Tax Act

It is difficult to see that the reply of July 28, 2008 was applied as above, and the reply of July 28, 2008 was after the division of this case

The reply to the question does not accurately reflect the facts of the division of this case.

Therefore, the plaintiff's assertion on this part cannot be viewed as being the object of trust.

Thai* Stock Company

00. Head of tax office

5, 2015

April 2, 2015

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of corporate tax of KRW 1,690,954,270 (including additional tax of KRW 662,366,088) against the plaintiff on December 20, 2012 by the defendant of the Gu office (hereinafter referred to as "the disposition of imposition of this case") shall be revoked.

1. Details of the disposition;

A. On October 28, 1976, the Plaintiff was established for the purpose of salt manufacturing business, sales business, and real estate leasing business with its head office located in the Incheon 00-Gu 00-dong, and was added to the place of business located in Incheon 00-dong on August 10, 2006 for the purpose of synthetic resin manufacturing business. On August 28, 2007, the Plaintiff established 00 corporations (hereinafter referred to as “instant division”) by spin-off the real estate lease sector and the synthetic resin business sector (hereinafter referred to as “the instant division”).

B. The Plaintiff determined that the instant division constituted qualified division meeting the requirements of Article 47(1) of the former Corporate Tax Act (amended by Act No. 9898, Dec. 31, 2009; hereinafter referred to as the “Corporate Tax Act”) and included KRW 4,126,864,46 of the gains on the transfer of assets generated from the instant division in deductible expenses at the time of filing a corporate tax return for the business year from October 1, 2006 to September 30, 207. A corporation established by division applied for reduction and exemption of acquisition tax and registration tax on the land, factories, etc. acquired through the instant division on the grounds that it constitutes grounds for exemption from acquisition tax and registration tax under the Act on Special Cases Concerning Taxation. However, the head of Incheon Metropolitan City 00 head failed to succeed to the bill received from the synthetic resin business sector, and issued acquisition tax and registration tax to the corporation established by division on Oct. 1, 2008 on the ground that the Plaintiff’s bill received from synthetic resin after the division cannot be qualified under the Corporate Tax Act.

A corporation established through division filed an administrative litigation against the above disposition, but the above claim was dismissed on the ground that the instant division does not fall under the qualified division under the Corporate Tax Act, and the above judgment was finalized on April 12, 2012 (Seoul High Court 2010Guhap000Nu2000, Seoul High Court 2011Du0000). D. On December 20, 2012, the Defendant rendered a disposition to impose corporate tax of KRW 4,126,864,864,46 on the ground that the instant division does not fall under the qualified division under the Corporate Tax Act (including additional tax of KRW 662,366,088) as corporate tax base and imposed corporate tax of KRW 1,690,954,270 (including additional tax of KRW 662,366,088), which was dismissed by the Tax Tribunal on July 16, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 4, the purport of the whole pleadings

2. The legality of the instant disposition

A. The plaintiff's assertion

(i) argument on qualified division;

The bill was issued in a lump sum on the basis of the bill received as a whole before the division, and the bill was deposited in the bill custody account of the principal bank and used for approval of the entire payment of the company. Thus, the bill received in the synthetic resin sector cannot be deemed assets belonging to a specific business division because it is a security for the entire payment of the company. It constitutes an exception to comprehensive succession under the proviso of Article 82 (3) 2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter “Enforcement Decree of the Corporate Tax Act”), which constitutes an exception to comprehensive succession under the proviso of Article 82 (3) 2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter “Enforcement Decree of the Corporate Tax Act”), and thus, the instant disposition was unlawful.

Although the National Tax Service trusted the established rules of the National Tax Service on assets, etc. for which exception to general succession was recognized, and the National Tax Service responded to the purport that the payment of the Plaintiff’s question is excluded from general succession even after the division of this case, the disposition of this case, on the premise that the division of this case does not meet the requirement of qualified division unlike the contents of the questioning reply, is contrary to the principle of trust protection and the principle of trust and good faith. 3) Revised Corporate Tax Act

Article 82-2 (4) 3 of the Enforcement Decree of the Corporate Tax Act (amended on February 21, 2014) provides that "property and liabilities, the market price of which is assessed at the time of the division, and assets and liabilities the total amount of which are not more than 20/100 of the total amount of assets and total amount of liabilities, shall be excluded from the subject of comprehensive succession, and the above provision in favor of taxpayers shall be applied retroactively to the above.

4) Since the National Tax Service’s trust in the established rules of the National Tax Service regarding additional tax and excluded the bill from the subject of succession to the bill at the time of the instant division, the penalty tax portion in the instant disposition was unlawful on the ground that there was a justifiable ground not to mislead the Plaintiff

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion on qualified division

A) In full view of the purport of the entire pleadings, the following facts can be acknowledged in the entries in Gap evidence Nos. 1, 2, 3, 4, 7, 9, 22, and Eul evidence Nos. 1 through 3.

On August 28, 2007, the date of completion of the divisional registration for the synthetic resin business, the Plaintiff was holding a bill equivalent to KRW 83,741,300 (hereinafter referred to as the “bill of Exchange”) acquired from 00,000 as the price for supply of chemical drugs from 00,000, which is the business partner, and there was no such bill.

3) Determination on the assertion on retroactive application of the amended Corporate Tax Act

Under the principle of no taxation without law, it is a matter of fact or fact of non-taxation, and tax laws shall be applied at the time of the occurrence of such fact, and shall be newly established or revised thereafter.

No retroactive application of specified tax laws and regulations shall be permitted, and the interpretation of tax laws and regulations shall be strict, and expanded interpretation or analogical interpretation shall not be permitted (Supreme Court Decision 82Nu206 Decided October 25, 1983).

see, e.g., Supreme Court Decision

Article 82-2 as the Enforcement Decree of the Corporate Tax Act was amended by Presidential Decree No. 25194 on February 21, 2014

With respect to the requirements for qualified division newly established pursuant to paragraph (4) 3, the value of the total assets and the total amount of debts at the time of division

assets and liabilities, each of which does not exceed 20/100 of the amount, shall be excluded from the subject matter of comprehensive succession.

However, according to Article 10 of the Addenda, the said new provision only provides that the said new provision shall apply to the division after February 21, 2014, and does not provide any provision regarding the retroactive application, and therefore, the Enforcement Decree of the amended Act does not apply retroactively to the division of this case. Therefore, the Plaintiff’s assertion on this part is without merit.

4) Determination as to the assertion on additional tax

Under the tax law, additional taxes are paid in order to facilitate the exercise of taxation rights and the realization of tax claims.

Where a taxpayer violates various obligations, such as reporting, tax payment, etc., prescribed by the Act without justifiable grounds;

taxpayer's intent or negligence as administrative sanctions imposed under the conditions as prescribed by tax-related Acts shall be considered.

not, however, that it is not unreasonable for a taxpayer to be unaware of his duty.

under the circumstances in which it may be justified or the fulfillment of its obligations is expected to be the parties.

There is a justifiable reason that it is not likely to cause a breach of duty, such as the case of the reason that it is unreasonable.

In this case, it is only impossible to do so (see Supreme Court Decision 2003Du4089 delivered on April 15, 2005).

In light of these legal principles, as seen earlier, the National Tax Service's established rules on December 24, 2003 (Clerks)

46012-12181) Considering that the tax authorities’ public opinion directly applied to the instant division is an expression of opinion.

of this case to the Plaintiff, and the tax authorities otherwise trust the Plaintiff to the effect that the division of this case is qualified.

Since there is no evidence to deem that the plaintiff asserted, the grounds alleged by the plaintiff are the land of the law.

the plaintiff cannot be found to have caused the failure to pay tax to the plaintiff, because they belong to the mistake.

No reasonable ground shall be deemed to exist.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.