Supreme Court Decision 2011Du32751 (Law No. 16, 2014)

Cho High Court Decision 2008Du2479 (No. 24, 2010)

A corporation newly established by division shall be deemed to acquire new assets at the time of succession of assets and shall calculate the scope of depreciation.

The book value and durable years are deemed to have been acquired as new assets, but it is legitimate to apply the book value and durable years, but there is a justifiable reason that cannot be caused by the conflict of opinion due to the intention of interpretation, which makes it impossible to cause the plaintiff to neglect his/her obligation to pay the tax.

Article 26 of the Enforcement Decree of the former Corporate Tax Act

Article 48 of the Framework Act on National Taxes

2014Nu4704 Revocation of Disposition of Corporate Tax Imposition

aa Stock Company

b Head of the Tax Office

Supreme Court Decision 2011Du32751 Decided May 16, 2014

November 06, 2014

November 27, 2014

1. The plaintiff's appeal and the defendant's appeal (excluding the part which became final and conclusive as the plaintiff's appeal is revoked at the court of refund transmission) are all dismissed.

2. Of the total litigation costs, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. The phrase " March 15, 2008" in paragraph (1) of the main text of the judgment of the court of first instance shall be corrected as " March 3, 2008; and May 3, 2008, May 1, 2008," respectively.

1. Purport of claim

"The defendant's disposition of imposing corporate taxxxxx numbers against the plaintiff on March 3, 2008 and the disposition of imposing corporate taxxx numbers against the plaintiff on May 1, 2008, 2008, the disposition of imposing corporate taxxx numbers against the plaintiff on May 1, 2003, the disposition of imposing corporate taxx numbers for the business year 2004, the disposition of imposing corporate taxxx numbers for the business year 2005, the disposition of imposing corporate taxx numbers for the business year 2006, and the disposition of imposing corporate taxxx numbers for the business year 206 (hereinafter in this case, each disposition charges) shall be revoked (the date of the disposition was corrected as above)," and

A. Plaintiff: A judgment of the first instance court is modified as stated in the purport of the claim;

B. Defendant: The part of the judgment of the court of first instance is taken by hand, and the Plaintiff’s claim corresponding to that part is dismissed.

1. Scope of the judgment of this court;

The portion exceeding the x won of the disposition of the xxx won of the disposition of the 2002 corporate tax for the year 2003, while the plaintiff filed a lawsuit against the defendant seeking the revocation of the whole of each disposition stated in the 'claim', but the first instance court partly accepted the plaintiff's claim, and '1', '2', '2) the disposition of the xxx won of the corporate tax for

3) Of the disposition of imposition of the corporate taxxx members for the business year 2004, the portion exceeding thex source among the disposition of imposition of the corporate taxx members, and '4) the portion exceeding thex source among the disposition of imposition of the corporate taxx members for the business

5) 2006 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분'을 각 취소하고(각 법인세 중 가산세에 해당하는 부분이다)，원고의 나머지 청구를 기각한 사실，원고와 피고가 제1심 판결의 각 패소부분에 관하여 각 항소하였고, 환송 전 당심에서는 제1심 판결을 변경하여，'1) 2002 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분'，'2) 2003 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분'、'3) 2004 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분'、'4) 2005 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분,'5) 2006 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분'을 각 취소하고(위 각 법인세 본세와 법인세 가산세 중 원고가 당초 신고한 가산세 부분을 제외한 나머지 전부), 원고의 나머지 청구를 기각한 사실, 피고만이 환송 전 당심판결 중 패소부분에 대하여 상고하였는데, 환송판결에서 피고 패소부분을 파기하여 이 부분 사건을 이 법원에 환송한 사실은 기록상 명백하다.",위 인정사실에 의하면, 제1심 판결 중 원고가 당초 신고한 가산세 부분은 제1심 판결을 취소하여 원고의 청구를 기각한 환송 전 당심판결에 대하여 원고가 상소하지 않아 확정되었다. 결국 이 법원의 심판대상은 제1심 판결 중 각 법인세 본세부분과 법인세 가산세 부분 중 원고가 당초 신고한 가산세 부분을 제외한 나머지 부분에 한정된다. 따라서 이 사건 각 처분 중 제1심 판결에 의하여 취소된 부분은，원고가 당초 신고한 가산세 부분이 제외되어 '1) 2002 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분, 2) 2003 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분, 3) 2004 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분，④ 2005 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분, 5) 2006 사업연도 법인세 xxx원의 부과처분 중 xx원을 초과하는 부분'이 되었다.)

2. Quotation of the official resolution of the first instance court;

The reasons why the court should explain in this decision are as follows, and the reasons why the judgment of the defendant is added are as follows, and the reasons why the judgment of the court of first instance is as stated in Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Parts to be cuted>

O The fourth sentence of the first instance court's decision " March 5, 2008" shall read " March 3, 2008," and the second sentence " May 3, 2008" as " May 1, 2008," respectively.

In addition, in cases where a corporation established through division, which received assets by division, fails to submit a report on the content under Article 28(3) of the former Enforcement Decree of the Corporate Tax Act, only the report on the content under Article 28(2)2 of the former Enforcement Decree of the Corporate Tax Act, the term of service under Article 28(3) of the former Enforcement Decree of the Corporate Tax Act shall be applied and the remaining term of service under Article 28(3) of the former Enforcement Decree of the Corporate Tax Act shall not be applied to a corporation divided by division.

"At the 14th 10th 14th 10th 14th 10th 14th 10th 1th 10th 1th 1th 14th 1th 2002 202 2002 2003 2003 2004 2005 2005 2006 2006 excluding the portion of 14th 14th 14th 14th 14th 200 2nd 2006 2nd 200."

O A list of attached Form 4 of the decision of the first instance court shall be replaced by attached Form 4 of the decision of this case.

3. Additional decision-making parts

A. Summary of the defendant's assertion

Even if there is a circumstance that the Plaintiff cannot be aware of his/her duty due to the conflict of opinion due to the significance of interpretation of tax law beyond the scope of legal sites or misunderstandings, the application of exemption of additional tax should be classified according to the nature of the sanction. Since the additional tax of this case consists of under-reported additional tax and under-paid additional tax, which is a kind of statutory interest that is imposed due to delay of tax payment, the additional tax of this case should be imposed regardless of the Plaintiff’s cause attributable to the Plaintiff.

B. Determination

(1) Article 76 (1) 3 of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006, hereinafter referred to as the "former Corporate Tax Act") provides that an amount calculated by multiplying the unpaid corporate tax by the interest rate prescribed by the Presidential Decree (3/1000 per day) shall be collected as additional tax for the period from the day following the due date to the date of voluntary payment or the date of notification. In light of such provision, the purpose of recovering the unpaid portion of the additional tax is to consider that a corporate taxpayer has received financial benefits during the due date for the unpaid amount of tax, and thus, the unpaid portion of the additional tax and unpaid additional tax under the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006, hereinafter referred to as the "former Corporate Tax Act") is also included in the purport of recovering the unpaid portion of the tax payable by the corporate taxpayer.

Article 48(83) of the former Corporate Tax Act provides that no additional tax shall be imposed on the corporation if there is no reason attributable to the corporation, and Article 48(83) of the current Framework Act on National Taxes provides that "if there is a justifiable reason for the taxpayer to not perform the obligation, the requirements for exemption of additional tax shall not be limited to the requirements for exemption of additional tax on the unpaid amount by stipulating the same clause as the same clause."

4. Conclusion

Therefore, the judgment of the court of first instance (excluding the part in which part of the plaintiff's winning part becomes final and conclusive as seen earlier) is justifiable, and the plaintiff and the defendant's appeal are dismissed as they are without merit.