Daegu District Court 2015Guhap21256 ( August 19, 2015)

Determination on a disposition to exclude an affiliated company from exclusion of income dividends for re-investment;

It is reasonable for the remainder after the Defendant’s cancellation of a disposition excluded from the exclusion of income dividends for re-invested shares.

Article 16 of the Value-Added Tax Act

2015Nu6386 Revocation of Disposition of Corporate Tax Imposition

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National Rotations

June 24, 2016

August 5, 2016

1. The plaintiff's appeal is dismissed.

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

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant's decision to the plaintiff on May 14, 2012 208

The disposition of imposition of corporate tax of KRW 71,241,591 (including additional tax of KRW 21,648,889) shall be filed for the business year (including the plaintiff)

In the trial, the purport of appeal was reduced according to the defendant's correction of reduction, and accordingly, the purport of appeal is accordingly.

shall be deemed to have been reduced.

1. Facts of recognition;

A. The plaintiff was established on December 18, 2003 and was engaged in real estate development, investment, management, and corporate acquisition;

It is a company that operates mergers, etc.

B. The Plaintiff filed a corporate tax return for the business year 2008, and DDR on April 10, 2008

Dividend of KRW 1,400,000,000 (hereinafter referred to as "D") received from a corporation (hereinafter referred to as "D")

Amount to be excluded from the taxable income under Article 18-3 (1) 1 of the former Corporate Tax Act (amended by Act No. 9267 of Dec. 26, 2008; hereinafter the same shall apply) for 00,000,000

The exclusion amount from gross income under Article 18-3 (1) 3 of the former Corporate Tax Act at source

265,723,458 won remaining after subtracting 434,276,542 won from gross income.

(C) On March 2012, GG analyzed the Plaintiff’s report of corporate tax for the business year 2008. As a result, the Plaintiff notified the Plaintiff, on April 4, 2012, that the Plaintiff would impose corporate tax on KRW 700,00,00 under Article 18-3(1)1 of the former Corporate Tax Act less the exclusion amount from inclusion in gross income under Article 18-3(1)3 of the former Corporate Tax Act from the exclusion amount of KRW 265,723,458, as well as the re-investment amount of KRW 265,723,458 of the former Corporate Tax Act, which is an affiliated company of DD (hereinafter “H”), the exclusion amount from inclusion in gross income under Article 18-3(1)4 of the former Corporate Tax Act, which is an excessive exclusion amount of KRW 434,276,542, not deducting the exclusion amount from gross income under Article 18-3(1)4 of the former Corporate Tax Act.

E. On August 21, 2012, the Plaintiff filed a request for review to the Board of Audit and Inspection, and partly responsible for the calculation of drop number.

Therefore, according to the Board of Audit and Inspection’s decision on December 4, 2014 to rectify the tax base and tax amount, the Defendant

section 18-3(1)4 of the former Corporate Tax Act, Enforcement Decree of the former Corporate Tax Act (Presidential Decree No. 2092, Feb. 4, 2009)

Non-Inclusion in gross income under Article 17-3 (4) and (5) of the Act on the Aggravated Punishment, etc. (amended by Act No. 21302, hereinafter

The exclusion amount shall be calculated as shown in attached Form 1 and the corporate tax for the business year 2008 on February 5, 2015 to the Plaintiff.

The reduction was corrected to 146,934,973 won (including additional tax of 44,655,095).

F. In the first instance court of this case, the lower court did not consider that the year 2008 was a leap year and did not err by calculating the drop number.

Therefore, the judgment that the portion exceeding 146,533,478 of the above 146,934,973 is illegal is affirmed.

Upon the ruling of the court of first instance, the defendant corrected the part against the defendant in accordance with the judgment of the court of first instance, and thereafter the correction was made.

On March 16, 2016, verifying that the amount excluded from gross income due to the possession of the loan was excessive.

In other words, ex officio the corporate tax for the business year 2008 KRW 71,241,591 (additional tax 21,648,889) to the Plaintiff

(including) the disposition of May 14, 2012 remaining after reduction (hereinafter referred to as the above reduction on several occasions)

'The Disposition of this case' was 'the Disposition of this case'.

G. Meanwhile, the Plaintiff’s investment in DD and the investment status of Plaintiff and DD’s H are as follows.

1) The Plaintiff’s investment status with respect to DD is as follows. The Plaintiff is the largest investor that acquired 700,000 shares, 50% of the total outstanding shares of SS (1,400,000 shares) on December 31, 203, and DD is an affiliated company under Article 2 subparag. 2 and 3 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) and Article 3 of the Enforcement Decree of the same Act.

Each entry of evidence Nos. 1, 2, 4, Eul evidence Nos. 1 through 4, 6 through 8, 9-1 through 4, and the purport of the whole pleadings and arguments for recognition;

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 18 of the former Corporate Tax Act, which is a provision that excludes a dividend payment corporation from exclusion from deductible income.

-3 Paragraph 1 Paragraph 4 is enacted in violation of the purpose of the double taxation coordination between corporations.

The legislative body also recognized and abolished the instant disposition. The instant disposition is recognized as the error of legislation and repealed.

As the basis of the provision, it is illegal (i).

2) Article 18-3(1)4 of the former Corporate Tax Act is an affiliated company under the Fair Trade Act.

to the extent that it means an affiliated company of any provision of the Fair Trade Act.

This case is based on this, since the law does not violate the principle of clarification of taxation requirements of the Constitution.

A disposition is null and void (B argument).

3) Article 18-3(1)4 of the former Corporate Tax Act does not clearly specify as above, and thus, taxpayers are married.

Note 5 caused disturbance, and there is a justifiable reason not to cause the Plaintiff’s breach of its duty.

Therefore, the part of the penalty tax in the disposition of this case should be revoked (Third argument).

4) Although a dividend payment corporation (D) under Article 17-3(5) of the former Enforcement Decree of the Corporate Tax Act (D) has to calculate the drop number as of August 28, 2008 when the investment ratio of its affiliated company (S) exceeds 30%, it erred by calculating the drop number as of July 1, 2008 (No. 4).

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) Determination as to the assertion

Article 18-3 (1) of the former Corporate Tax Act shall be received from another invested domestic corporation.

the sum computed pursuant to subparagraphs 1 and 2 of the same paragraph among the dividend amounts;

in excess of the aggregate of the amounts calculated under subparagraphs 3 and 4;

that the amount shall not be included in the gross income in calculating the income amount for each business year.

If another domestic corporation that paid dividends to the domestic corporation under subparagraph 4 (limited to where the domestic corporation is an affiliated company of the domestic corporation) has invested in an affiliated company, it shall be as prescribed by Presidential Decree.

The "amount calculated" was defined as "amount calculated."

Article 18-3 (1) 4 of the former Corporate Tax Act was deleted by Act No. 9267 on December 26, 2008.

The Corporate Tax Act amended by Act No. 9267 enters into force of the amended Act, Article 1 of the Addenda to the Corporate Tax Act.

1. 1. The provisions of Article 18-3 (1) of the Addenda to this Act, which are amended first after the enforcement of this Act; and

Since Article 18-3 (1) 4 of the former Corporate Tax Act provides that the same shall apply to this case in which dividends are previously paid.

Comprehensively taking account of the contents of Articles 18-2 and 18-3 of the former Corporate Tax Act and the above amendment process, Article 18-3(1)4 of the former Corporate Tax Act was established to exclude a company from the exclusion of gross income in cases where a subsidiary re-invested in the same manner as a holding company. However, Article 18-3(1)4 of the former Corporate Tax Act was also established to restrain a vertical expansion through a chain investment by excluding the exclusion of gross income in cases where a subsidiary re-invested in the same manner as a holding company. However, the applicable period was determined to have been irrelevant to the original purpose of the system for exclusion of gross income from the exclusion of dividend income, which was the period of its application

In the action, it is null and void as an unconstitutional law because it did not have any provision to apply it retroactively.

shall not be deemed to exist.

The plaintiff's assertion on this part is without merit.

2) Judgment on the argument

The principle of no taxation without law adopted by Articles 38 and 59 of the Constitution provides that the requirements and procedures for the exercise of tax rights, such as tax requirements and procedures for collecting taxes, shall be prescribed by the law enacted by the National Assembly, which is the representative body of the people. In cases where such laws or regulations delegate matters concerning taxation requirements and collection procedures to subordinate statutes, the provisions of orders and regulations based on delegation shall be clearly and clearly and clearly defined (see, e.g., Supreme Court Decision 96Nu3913, Dec. 6, 1996). Therefore, whether any act contrary to the principle of no taxation requirement is against the principle of no taxation requirement, can be predicted as being subject to taxation from the taxpayer’s standpoint as it falls under the pertinent phrase, which is a taxation requirement, and the possibility that the uncertainty of the pertinent phrase may be arbitrarily and discriminately applied from the standpoint of an administrative agency

would be able to expect the choice of more conclusive phrases technically in legislation.

(1) A person shall be subject to a comprehensive judgment in accordance with the standard of review, etc. (Supreme Court Decision 2002Du202 delivered on September 23, 2004)

1588(see, e.g., Supreme Court Decision 1588). However, a variety of elements of taxation requirements are clearly distinguished from tax laws and regulations

such regulations are very difficult for legislative technology, so general, abstract, general, and general provisions

Even if the meaning can be embodied and clarified through the interpretation as a legal supplement action of judges, the provision cannot be deemed to go against the principle of clarity of taxation requirements due to lack of clarity (see Supreme Court Decision 2013Du16876, Nov. 27, 2014).

Article 2 subparag. 2 of the Fair Trade Act defines an enterprise group, and Article 2 subparag. 3 of the same Act provides that where two or more companies belong to the same enterprise group, they shall be deemed to be affiliated companies of each other, and Article 3 of the Enforcement Decree of the same Act provides that the scope of the enterprise group is specifically defined. As long as an affiliated company is clearly defined through the definition provision in the Fair Trade Act, an affiliated company under Article 18-3(1)4 of the former Corporate Tax Act is stipulated as an affiliated company under the Fair Trade Act, and the said provision does not violate the principle of clarity of the requirements for taxation under the Constitution.

The plaintiff's assertion on this part is without merit.

3) Judgment on the assertion

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims if a taxpayer violates various obligations, such as reporting and tax payment, without justifiable grounds, and the taxpayer's intention or negligence is not considered and does not constitute justifiable grounds that do not cause the taxpayer to breach of his/her duty.

(See Supreme Court Decision 2000Du5944 Decided April 12, 2002).

As seen earlier, Article 18-3(1)4 of the former Corporate Tax Act clearly stipulates that “where another domestic corporation that paid dividends to the relevant domestic corporation (limited to cases where it is an affiliated company of the relevant domestic corporation) has invested in an affiliated company, the amount calculated as prescribed by the Presidential Decree shall be excluded from the gross income.” Thus, it cannot be deemed that there is a justifiable reason that the Plaintiff is not liable to cause the Plaintiff’s failure to perform his/

The plaintiff's assertion on this part is without merit.

4) Judgment on the argument

Article 18-3 (1) 4 of the former Corporate Tax Act (Article 18-3 (1) of the same Act)

Article 17-3 (4) of the former Enforcement Decree of the Corporate Tax Act provides that "where a domestic corporation (limited to cases where the domestic corporation is an affiliated company of the domestic corporation) has invested in an affiliated company, it shall be the amount excluded from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the exclusion from the income, and the book value of stocks, etc. acquired by the domestic corporation after investing in the affiliated company

On the other hand, Article 2(3) of the Fair Trade Act provides that two or more companies are identical for affiliates.

Article 3 subparagraph 1 of the Enforcement Decree of the same Act provides that "a company, the largest shareholder of which owns not less than 30/100 of the total number of shares issued by the relevant company solely or jointly with persons related to the same person," and Article 3 subparagraph 1 (d) of the Enforcement Decree of the same Act provides that "a company, the same person of which controls substantially the business pursuant to the provisions of this subparagraph or subparagraph 2 of the same Article," and therefore, Article 3 subparagraph 2 (a) of the Enforcement Decree of the same Act provides that "the same person shall appoint or dismiss the representative director or appoint not less than 50/100 of the executives by contract or agreement with other major shareholders."

In addition, Articles 385 and 434 of the Commercial Code are not less than 2/3 of the voting rights of shareholders present at the meeting of directors.

Article 382 and Article 368 of the Commercial Act provide that "The directors may be dismissed by a resolution of a general meeting of shareholders or more", and Article 382 and Article 368 of the Commercial Act provides that "the majority of the voting rights of shareholders present at the meeting and the appointment of directors by a resolution of a

In light of the above provisions in this case, the plaintiff is in the position to appoint not less than 50/100 of D's officers as it holds not less than 2/3 of D's shares since before the business year of 2008. Thus, it is reasonable to deem that the plaintiff is a company that actually controls D's business contents, and as seen above, the plaintiff is in the same person.

Ro H shares held by DD are 29.7%, and this does not merely mean that D and F are affiliated companies. However, this is also 42.5% if the Plaintiff, a person related to DD, holds 12.8%, at the time, as the Plaintiff, a person related to D, becomes an affiliated company as of July 1, 2008.

Therefore, the disposition of this case where the Defendant calculated corporate tax for the business year 2008 by calculating the exclusion amount from gross income as of July 1, 2008, on the basis of the date on which the Plaintiff, DD, and H, both of which are affiliated companies, is legitimate.

The plaintiff's assertion on this part is without merit.

3. Conclusion

Thus, the plaintiff's claim as to the disposition of this case shall be dismissed on the ground of the ground of appeal.

F. The judgment of the court of first instance is just in conclusion (the plaintiff's claim is accepted in the judgment of the court of first instance).

The part was already revoked by the Defendant, and the amount excluded from gross income due to the loan holding is excessive.

The calculation has already been revoked by the defendant, and as to the disposition of this case corresponding to the remainder

The judgment of the first instance is justifiable). The plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The decision shall be rendered as above.