KT Co., Ltd. (Bae & Yang LLC, Attorneys Park Young-young et al., Counsel for the plaintiff-appellant)

Korea (Government Law Firm Corporation, Attorneys Kim Young-jin et al., Counsel for the plaintiff-appellant)

November 6, 2015

Seoul Central District Court Decision 2014Gahap565014 Decided April 10, 2015

1. The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff the amount of money indicated in the "amount of payment" table of the claim amount in attached Form 1 and each of the above amounts at the rate of 20% per annum from the date indicated in the "amount of payment" column of each corresponding "date of payment" column to the date indicated in the corresponding "date of expiration" column of each corresponding "date of payment" column, and from January 14, 2015 to the date of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is a corporation that operates key telecommunications business as a key telecommunications business operator under the Telecommunications Business Act.

B. In June 1996, the Plaintiff obtained permission from the Minister of Information and Communication for the PC (Person Community Service, hereinafter “PCS”) service from October 1997 with respect to the PC service, which is a 2.5-generation mobile communications service, and provided the IMT 2000 mobile communications service from the Minister of Information and Communication in December 2001 with a license for the IMT 2000 (IMT-200, International Mobcom -2000, hereinafter “IMT 200”), and from December 2003, the Plaintiff provided the IMcheon's commercial service.

C. From August 1, 2009 to November 30, 2010, the Plaintiff paid each money as stated in the “payment date” table in attached Table 1 as stamp to the Defendant with respect to the application form for subscription prepared with respect to the use of IM 100 services (hereinafter “instant stamp”) as of August 1, 2009, as of the date indicated in the same Table (the amount indicated in attached Table 1 as of August 8, 2009; the amount indicated in the No. 2 as of September 2009; the amount indicated in the No. 3 as of October 1, 2009; the amount indicated in the No. 4 as of November 1, 2009; the amount stated in the No. 5 as of December 209; the amount stated in the No. 6 as of January 12, 2010; the amount stated in the No. 1 as of February 1, 2010; and the amount stated in the No. 51 as of 201.

D. On August 9, 2012, the Plaintiff filed an application for the refund of stamp tax with the head of a tax office having jurisdiction over the effect that “The application for the subscription to the IMT 2000 service constitutes stamp tax documents even if it does not correspond to stamp tax documents, and thus, the Plaintiff paid stamp tax on the application for the subscription written between the customer and the customer for the use of the IMT 2000 service from August 1, 2009 to July 31, 2012.”

E. On September 19, 2012, the head of a tax office having jurisdiction over a branch office notified that the application for the refund of the stamp tax would be rejected. The Plaintiff filed an appeal with the Tax Tribunal on November 26, 2012, but was dismissed by the Tax Tribunal on December 30, 2013.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 8 (including provisional number; hereinafter the same shall apply) and the purport of whole pleadings

2. Relevant provisions;

(a) Contents of the relevant regulations;

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

(b) Time and method of application of the provisions related to the stamp tax law;

From August 1, 2009 to December 31, 2009 during the key issue period, the relevant provisions of the former Inheritance and Gift Tax Act (amended by Act No. 9917, Jan. 1, 2010) and the current provisions of the Inheritance and Gift Tax Act are respectively applicable from January 1, 2010 to November 30, 2010. Since the current provisions of the Inheritance and Gift Tax Act and the provisions related to the former Inheritance and Gift Tax Act are substantially identical, the provisions related to the current Inheritance and Gift Tax Act are to be indicated only by the current provisions related to the stamp Tax Act in cases where the provisions related to the stamp Tax Act are indicated.

(c) Time and method of application of the provisions related to the Enforcement Decree of the Stamp Tax Act;

From August 1, 2009 to February 17, 2010, the former Enforcement Decree of the Revenue and Gift Tax Act (amended by Presidential Decree No. 22039, Feb. 18, 2010) (amended by Presidential Decree No. 22039, Feb. 18, 2010; Presidential Decree No. 22424, Oct. 1, 2010; Presidential Decree of the Revenue and Gift Tax Act (amended by Presidential Decree No. 22424, Oct. 1, 2010; Presidential Decree No. 22424, Nov. 30, 2010; Presidential Decree of the Revenue and Gift Tax Act) applies to each provision related to the Enforcement Decree of the Revenue and Gift Tax Act from Oct. 1, 2010 to Nov. 30, 2010.

(d) Time of application of relevant provisions of the Telecommunications Business Act;

From August 1, 2009 to September 22, 2010, the relevant provisions of the former Telecommunications Business Act (amended by Act No. 10166, Mar. 22, 2010) and the relevant provisions of the former Telecommunications Business Act (amended by Act No. 11690, Mar. 23, 2010) shall apply respectively during the key period from September 23, 201 to November 30, 2010.

(e) Time of application of relevant provisions under the Enforcement Decree of Telecommunications Business Act;

The relevant provisions of the former Enforcement Decree of the Telecommunications Business Act (amended by Presidential Decree No. 22424, Oct. 1, 2010) from August 1, 2009 to September 30, 2010, and the relevant provisions of the former Enforcement Decree of the Telecommunications Business Act (amended by Presidential Decree No. 24546, May 31, 2013) shall apply respectively during the key period from October 1, 201 to November 30, 2010.

3. Summary of the parties' arguments

A. The plaintiff's assertion

① Mobile or personal portable communications and IMTTcheon are mobile communications services with fundamental differences in radio frequency band, data transmission speed, and data transmission capacity, etc. <2> stamp tax laws depend on the concept of mobile or personal portable communications services, depending on Telecommunications Business Ordinance. The Telecommunications Business Ordinance explicitly specifies IMTcheon Services as mobile or personal portable communications services, ③ The meaning of mobile or personal portable communications, derived from the principle of strict interpretation derived from the principle of no taxation without law, should be strictly interpreted. In light of the above, it cannot be deemed that ATTcheon Services application constitutes stamp tax document.

Thus, the plaintiff paid the stamp tax at issue to the defendant, and the defendant obtained a benefit equivalent to the stamp tax at issue without any legal ground. Thus, the defendant is obligated to pay the plaintiff the amount equivalent to the stamp tax at issue, the legal interest in accordance with the interest rate on additional payment of national taxes, and delay damages in accordance with the interest rate prescribed by the Act on Special Cases concerning the Promotion, etc. of Civil Act and Litigation.

B. The defendant's argument

① Mobile or personal portable communications service under the Enforcement Decree of the Stamp Tax Act refers to a general meaning, again, the term “general mobile communication which transmits voice, data, etc. in a free movement,” and falls under the upper concept of AIM 2000 services. ② Even though mobile or personal portable communications service is not a ethic concept but a ethic concept, there is no difference in the intrinsic nature of “the wireless communication which transmits voice, data, etc. in a free movement,” ③ The legislative intent of the Inheritance Tax Act to impose stamp tax on a written contract or a written application for subscription prepared for the use of public re-transmission need to be carried out, in light of the need to be carried out in the written application for subscription to a service, it shall be interpreted that it is included in a mobile or personal mobile communication as referred to in the Enforcement Decree of the Stamp Tax Act, and even if it may not be directly included, a claim by the Plaintiff for such other reasonable premise shall be dismissed.

4. Determination

(a) IMT 200 services do not directly include mobile or personal portable communications services as referred to in the Enforcement Decree of the StampA;

1) The stamp tax laws and the Telecommunications Business Act do not have an independent definition provision regarding mobile phones or personal portable communications services.

A) Article 3(1)7 of the Stamp Tax Act provides for “a contract or an application for subscription prepared to use services prescribed by Presidential Decree among key telecommunications services under the Telecommunications Business Act as a document for continuous and repeated transactions.” Article 4 Subparag. 2 of the Enforcement Decree of the Stamp Tax Act provides for “a contract or an application for subscription prepared to use a wireless telephone or personal portable communications service among key telecommunications services under the Telecommunications Business Act” as a document for stamp taxation, and does not provide a specific definition of mobile or personal portable communications service. In other words, the relevant provisions of the Enforcement Decree of the Stamp Tax Act provide that “a contract or an application for subscription prepared to use a wireless telephone or personal portable communications service among key telecommunications services under the Telecommunications Business Act are only one of key telecommunications services under the Telecommunications Business Act.”

B) According to the former Telecommunications Business Act (amended by Act No. 10166, Mar. 22, 2010); however, Article 7 of the former Enforcement Decree of the Telecommunications Business Act (amended by Presidential Decree No. 22424, Oct. 1, 2010; Presidential Decree No. 2035, Oct. 1, 2010; Presidential Decree No. 2065, Apr. 1, 2011; Presidential Decree No. 2065, Apr. 2, 2011; Presidential Decree No. 2065, Apr. 2, 2011; Presidential Decree No. 20655, Apr. 1, 2011; Presidential Decree No. 20655, Apr. 2, 2011; Presidential Decree No. 20166; Presidential Decree No. 20650, Apr. 1, 2015; Presidential Decree No. 2020, Jan. 3, 2014).

C) Ultimately, the concept of mobile or personal portable communications under the Enforcement Decree of the Stamp Tax Act can only be interpreted by referring to the relevant administrative rules of the Telecommunications Business Act and other statutes, and the general examples of Korean language communities discovered in advance, etc., which are applied to the key telecommunications service within the scope of the key telecommunications service prescribed by the Telecommunications Business Act, which was applied during the key period.

2) Examining the concepts and examples of mobile phones, personal portable communications and IMTcheons, as follows:

A) The words "dive telephone" are four means as follows:

(1) Radiophones that can freely move and call: The Standard Korean Language Preliminary published by the National Institute of Korean Language defines the mobile phone as mentioned above (Article 9).

(2) Radio telephone and general telecommunications containing such telephone and telecommunications capable of freely moving a telephone: A mobile phone is deemed to be a mobile phone regardless of whether or not it has any other function of transmitting or receiving data, images, etc. when it is possible to freely move a telephone by means of radio communications. The foregoing precedents may be found in Article 7(1) of the former Standards for Interconnection of Telecommunications Facilities; Article 1 of the former Telecommunications Business Act; Article 1 of the telecommunications service provider subject to authorization of the former Terms and Conditions for Use; Article 3 subparag. 1 of the former Rules on Telecommunications Number Management; Article 3 subparag. 12 and 13 of the former Rules on Telecommunications Numbers Management; Article 4(1) of the Standards for Notice on Excess of Fees; Article 2 subparag. 12 of the Protection of Communications Secrets; Article 46-2(1)5 of the Enforcement Decree of the Framework Act on Disaster and Safety Management.

③ Radio equipment for the first and second mobile phones is often called a mobile phone or smartphone. These examples can be found in the Framework Act on Broadcasting Communications Development.

④ Mobile communications for 1 and 2 households with accelerators: when classifying the frequency band based on technical standards for each household: mobile communications with mainly 800 MHz and with the transmission and reception of voice (in cases of one household, an Arabic method which makes it possible to transmit and receive voice, and in cases of two households: digital telecommunications which can transmit and receive low-speed data, other than voice, in addition to voice). The aforementioned examples can be found in attached Table 14-2 of the Enforcement Decree of the former Radio Waves Act.

B) When classifying personal portable communications based on the technical standards for each household, the term “PCS,” which is a 2.5-household mobile communications, referring to the transmission and reception of voice and valuable data using the frequency band as the frequency band from 1.7 to 1.8GHz, is used as Li.e., 2.5 households mobile communications. In attached Table 14-2 of Article 97-2 of the Enforcement Decree of the former Radio Waves Act, the foregoing examples can be found.

C) When classifying IMTcheon based on the technical standards for each household, it is used as a term referring to three mobile communications units with a view to transmitting and receiving voice and high-speed data using the frequency band as 1.8 to 2GHz. It can be found that the aforementioned examples are found in Article 3 subparag. 2 (b) of the former Standards for the Separation of Accounting of Telecommunications Business, and Article 3 subparag. 13 of the former Telecommunications Number Management Rule.

3) In analyzing Article 4 subparagraph 2 of the Enforcement Decree of the StampA based on the concept of this mobile phone, personal portable communications and IMTcheon in the above 2, it does not directly include IMTcheon Services in the mobile phone or personal portable communications services under Article 4 subparagraph 2 of the Enforcement Decree of the StampA.

A) Article 4 Subparag. 2 of the StampA provides for a mobile phone as one of the key telecommunications services. Thus, the mobile phone mentioned here cannot follow the third meaning of the mobile phone.

B) In addition, Article 4 Subparag. 2 of the Inheritance and Gift Tax Act stipulates that the mobile phone and personal mobile phone are on an equal footing. It does not conform to logically to the fact that the mobile phone referred to in this context sets the personal mobile phone on an equal footing in the latter sense. Therefore, it cannot be deemed that the mobile phone here refers to the mobile phone in the second sense.

C) If so, Article 4 subparag. 2 of the StampA provides that mobile phones refer to the first or the fourth meaning of mobile phones. ① Personal mobile communications, namely, PCS’s concept as technical standards for each household, ② Enforcement Decree of the former Telecommunications Business Act (amended by Presidential Decree No. 22424, Oct. 1, 2010) and the former Enforcement Decree of the Telecommunications Business Act (amended by Presidential Decree No. 24546, May 31, 2013) are one of the telephone services for the disabled, low-income group, etc. However, considering that the former Enforcement Decree of the Telecommunications Business Act provides that mobile phone services, private mobile communications services, and IMTTT as equal in terms of the foregoing, it is reasonable to interpret that the former Enforcement Decree of the Telecommunications Business Act provides that the former Enforcement Decree of the Telecommunications Business Act is more than 130,000,000 if it is deemed that the former Enforcement Decree of the Telecommunications 231,201.

D) The term “personal portable communications” under Article 4 subparag. 2 of the Enforcement Decree of the Stamp Tax Act refers to the term “personal portable communications” as seen earlier. Meanwhile, the Defendant asserts that the personal portable communications should be understood as a general meaning. Although the purport of the assertion is not clear, the Defendant’s personal portable communications should be understood as a “telecommunications from which an individual can receive and receive voice, data, etc. through the radio equipment carried by him/her” by integrating the word “telecommunications from which an individual can receive and receive voice, data, etc. through the radio equipment carried by him/her” (the personal portable communications within this meaning is not listed in advance, and it is not used in our legal system). In interpreting it to this purport, it is substantially identical to the concept of the second mobile phone and the latter, and it is logically unreasonable to define the personal portable communications with the words “transport” after the latter. Therefore, it cannot be interpreted as above.

E) If so, IMTcheon does not fall under the above mobile phone and does not fall under the personal portable communications. Since Article 4 subparagraph 2 of the Enforcement Decree of the Stamp Tax Act takes the method of listing rather than the corresponding provision, it shall not include IMTcheon services directly in the mobile phone or personal portable communications services under Article 4 subparagraph 2 of the Enforcement Decree of the Stamp Tax Act.

B. In a case where a mobile telephone or personal portable communications service is expanded or analogically interpreted under the Enforcement Decree of the Inheritance and Gift Tax Act, it constitutes a IMT astronomical service, and there are reasonable grounds for expanding interpretation or analogical interpretation.

The interpretation of tax laws and regulations under the no taxation without law shall be interpreted in accordance with the text of the law unless there are special circumstances, but it is possible to expand or analogically interpret in a case where there are reasonable grounds (see Supreme Court Decision 2008Du11372, Aug. 20, 2009). For the following reasons, there are reasonable grounds to view IMT 00 services as including the mobile or personal portable communication services under the Enforcement Decree of the Inheritance and Gift Tax Act.

1) Upon the amendment of the Stamp Tax Act by Act No. 6537, Dec. 29, 2001, the Enforcement Decree of the Stamp Tax Act was amended by Presidential Decree No. 17463, Dec. 31, 2001, “a written contract or an application for subscription prepared to use mobile phones or personal mobile communications services” constitutes stamp tax documents. According to the National Assembly Finance Committee’s “Report on the Amendment of the Stamp Tax Act” at the time, it was intended to add “written application for subscription” to a taxable document taking into account equity with existing stamp tax documents (Evidence No. 7). Accordingly, Article 4(a)1 of the Enforcement Decree of the Stamp Tax Act provides that “a written application or application for subscription prepared to use mobile phones or personal mobile communications services after the use of mobile phones” is not “a written application for subscription to a taxable document or an application for subscription prepared to use mobile communications services after the use of the existing mobile phone or personal mobile communications services” and rather, it is not a “written application for the use of personal mobile communications services” in the same way.

2) Article 3(1)7 of the Enforcement Decree of the Revenue and Tax Act and Article 4 subparag. 2 of the Enforcement Decree of the Revenue and Tax Act reveal the form of law for the realization of the legislative intent. However, it is necessary to pay attention to the fact that Article 4 subparag. 2 of the Enforcement Decree of the Revenue and Tax Act makes an attempt to reflect the legislative intent above. In other words, Article 4 subparag. 2 of the Enforcement Decree of the Revenue and Tax Act provides as a stamp tax document a “contract or application form prepared to use a mobile or personal mobile communication service, among common telecommunications services under the Telecommunications Business Act, as a document for stamp tax, the term “a contract or application form prepared to use a mobile or personal mobile communication service,” which is not used under the Telecommunications Business Act prior to the term “tel or personal mobile communication service,” and thus, it appears that in comparison with Article 4 subparag. 1 of the Enforcement Decree of the Revenue and Tax Act, it is deemed that it has expressed its intent to impose a tax on mobile communication service with the basic device function.

3) Article 2(2)3(c) of the Enforcement Decree of the Telecommunications Business Act provides that one of the telephone services for the disabled and low-income groups, which are universal service under Article 2(2)3(c) of the Enforcement Decree of the Telecommunications Business Act (amended by Presidential Decree No. 21060, Oct. 1, 2008; 2) provides that “the mobile telephone service, personal portable communications service and radio call service during the fixed-term telecommunications service” is one of the telephone services for the disabled and low-income groups under Article 2(2)3(c) of the aforementioned amendment, which does not explicitly include “the mobile service among the fixed-term telecommunications service, the mobile service, the personal portable communications service, and the IMT’s radio call service.” However, the concept of universal telecommunications service and the concept of universal telecommunications service should not be explicitly defined by the Telecommunications Business Act that does not vary between the definition of the mobile telecommunications service and the personal telecommunications service, and the concept of the personal telecommunications service sector’s mobile service.

4) Rather, during the key issues, a large number of the public announcements of the Broadcasting and Communications Commission made pursuant to the Information and Communications Act and the Communications Commission explicitly uses the word of mobile phones as a super-high concept with which personal portable communications and IMTcheon are known (Article 7(1) of the Interconnection Standards for Telecommunications Facilities; Article 1 of the telecommunications business operator subject to authorization of the former Terms and Conditions of Use; Article 1 of the telecommunications service subject to authorization of the former Terms and Conditions of Use; Article 3 subparag. 12 and 13 of the former Rules of Telecommunications Number Management; Article 2 subparag. 1 of the former Rules of Telecommunications Number Management; Article 4(1) of the Standards for Notice on the Implementation of the Number portability of Mobile Telecommunications Service Numbers; Article 3 subparag. 1 of the former Rules

5) From December 2003, the Plaintiff provided IMTcheon commercial services, and the Enforcement Decree of the Telecommunications Business Act was amended by Presidential Decree No. 21060 on October 1, 2008, the Plaintiff paid stamp taxes on the application for the subscription of IMTcheon services for a long period, despite the fact that the IMTcheon services, other than the existing mobile telephone service, personal portable communications service, were additionally provided, even though the IMTcheon service, were included in the telephone service for the disabled and low-income groups, which are universal service. The Plaintiff filed an application for refund of the issue stamp tax on the application for the subscription of IMTcheon service.

6) In full view of the above points, there are reasonable grounds to expand the interpretation or analogical interpretation by referring to the “radiophone mobile or personal mobile communications service” under Article 4 subparag. 2 of the Enforcement Decree of the StampA from a combined objective point of view to “a cellular phone or personal mobile communications service” and “a cellular phone service with radiotel or PCS function, such as IMTcheon” and “a mobile communication service with enhanced technological method than PCS.”

5. Conclusion

Therefore, without examining other issues, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed.

[Attachment]

Judges Kim Jae-sik (Presiding Judge)