Daejeon District Court-2014-Gu Partnership-101506 ( November 20, 2014)

Cho Jae-2010- Jeon 3272 ( January 13, 2014)

Tax on capital gains of a corporation that has moved its head office to a local area

Only recognizing the area calculated by multiplying five times the settled area of a building that is newly built and sold by a corporation operating the housing construction and sales business that has relocated its headquarters to the local area, and a disposition taxable by excluding transfer margin from the tax base subject to reduction and exemption

Article 63-2 of the former Restriction of Special Taxation Act

Daejeon High Court 2014Nu12824 Revocation of Disposition of Corporate Tax Imposition

d○○○○○

○ Head of tax office

National Rotations

on July 7, 2015

on October 25, 2015

1. Of the judgment of the first instance court, the part against the Plaintiff regarding the order to revoke below shall be revoked.

The Defendant’s imposition of corporate tax for the business year of 2005 on June 1, 2010 by ○○○ (including additional tax) shall revoke the part of additional tax ○○ (including additional tax).

2. The plaintiff's remaining appeal is dismissed.

3. 70% of the total litigation costs shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

The judgment of the first instance shall be revoked. On June 1, 2010, the imposition of ○○ (including additional tax) corporate tax for the business year of 2005 against the plaintiff shall be revoked.

1. Details of the disposition;

A. On May 25, 1991, the Plaintiff (the company established on May 25, 1991, ○○-dong ○○○○-dong ○○-dong ○○○-dong ○○-dong ○○○-dong ○○-dong ○○-dong ○○-dong ○○-dong ○○○○○ ○○-dong ○○○○ dong ○○○○ dong dong dong on December 20, 2001, but transferred the head office on July 12, 2003.

B. The plaintiff filed a return of corporate tax for the business year of 2005, and the former Restriction of Special Taxation Act (amended by Presidential Decree No. 1790, Dec.

30. The application for the temporary tax reduction or exemption under Article 63-2 of the former Restriction of Special Taxation Act (amended by Act No. 7003; hereinafter referred to as the "former Restriction of Special Taxation Act") (hereinafter referred to as the "application for temporary tax reduction or exemption"), and the "land attached to the house (hereinafter referred to as the "land annexed to the house") transferred by a newly built-sale corporation under Article 63-2 (2) 2 (a) of the former Restriction of Special Taxation Act" was calculated as the standard for the total floor area of the house and the corporate tax was reduced or exempted.

C. From January 20, 2010 to April 1, 2010, the head of ○○○ conducted a corporate tax investigation on the Plaintiff and notified the Defendant, who is the tax authority over the Plaintiff of the results of the investigation.

Accordingly, the defendant reported to the plaintiff on June 1, 2010 on the basis of the "total floor area of the house" of the plaintiff.

Article 60-2(5)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 18176 of Dec. 30, 2003; hereinafter referred to as the "former Enforcement Decree of the Restriction of Special Taxation Act") limits the area calculated by multiplying five times the area on which the building is built by the five times, and deducts transfer margin on the area in excess from the amount of Article 63-2(2)2(a) of the former Restriction of Special Taxation Act (hereinafter referred to as the "tax base of this case"), and makes a correction and notification of corporate tax ○○○ for 205 business year including additional tax ○○ (hereinafter referred to as the "disposition of imposition of government officials in this case"), as seen in subparagraph 1(e) below.

D. On August 31, 2010, the Plaintiff filed an appeal with the Tax Tribunal on the appeal.

The portion of penalty tax not submitted on January 13, 2014, excluding the portion of penalty tax not submitted on payment records among corporate tax for the business year 2005

Part was dismissed.

E. After that, the Defendant failed to submit a statement of payment on January 28, 2014 in accordance with the decision of the Tax Tribunal on January 28, 2014

The additional tax ○○ is determined to refund the portion of the additional tax, and the remaining notified tax amount at the time of filing the instant lawsuit is 00 won.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, 7, 9, Eul evidence 1 and 2

Each entry, including branch numbers, hereinafter the same shall apply) and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) As to the main tax of the instant disposition

A) The former Ministry of Finance and Economy, through the established rules of February 28, 2001 (e.g., 46019-36)

With respect to the temporary special tax reduction and exemption under Article 63-2 of the Act (amended by Act No. 6538 of Dec. 29, 2001; hereinafter "the Restriction of Special Taxation Act prior to the enforcement of 2002"), in case where a corporation operating a housing construction and sales business relocates its headquarters to a local area under Article 63-2 of the Restriction of Special Taxation Act prior to the enforcement of 2002, in calculating the corporate tax reduction and exemption on income for each business year, the income from the transfer of a house for which the special tax is not levied under Article 100 (1) 5 of the former Corporate Tax Act (amended by Act No. 6558 of Dec. 31, 2001; hereinafter "former Corporate Tax Act") shall be governed by Article 63-2 (2) 2 (a) of the Restriction of Special Taxation Act prior to the enforcement of 202.

Among them, the interpretation of the former Corporate Tax Act, which is excluded from the scope of "transfer margin of land and buildings" that are deducted from the tax base of the relevant year. This is to say that the legislative intent of the special surtax under the former Corporate Tax Act and the purport of Article 63-2 (2) 2 (a) of the Restriction of Special Taxation Act prior to the enforcement of 2002 is the same as that of excluding "transfer margin of land and buildings" from the income subject to reduction or exemption. In accordance with the above established rules, it was confirmed that the Plaintiff, such as the Plaintiff, can receive taxation benefits under the Restriction of Special Taxation Act prior to the enforcement of

On the other hand, the Enforcement Decree of the Corporate Tax Act and the Enforcement Decree of the Corporate Tax Act were amended on February 9, 2006.

Article 92-2 (4) 4 (a) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 19328, Feb. 9, 2006; hereinafter referred to as the "Enforcement Decree of the Corporate Tax Act") provides that with respect to "land annexed to a house", "area calculated by multiplying five times by the area on which the building is built" and "total floor area of the house", the former Ministry of Finance and Economy has interpreted the provisions of the Enforcement Decree of the Corporate Tax Act to the effect that the special surtax of the past shall be applied retroactively to the previous special surtax through the established rules of July 11, 2006.

Therefore, the Regulations of the Ministry of Finance and Economy of February 28, 2001 (e.g., 46019-36) and the retroactive application of the Rules of February 28, 2001.

When interpreting the regulations established on July 11, 2006 (re-property-813), the former Enforcement Decree of the Corporate Tax Act is amended.

With respect to the interpretation of the scope of the "transfer margin of land and buildings" under the Restriction of Special Taxation Act, it shall be deemed that the same is applied retroactively, and such purport is expressed publicly through the rules of the Ministry of Finance and Economy.

The plaintiff shall be deemed to have been aware of this, whichever is larger between the "total floor area of the house" and the "building settlement area".

Inasmuch as the instant application was filed on the basis of “area” and there is no reason attributable to it, the instant disposition taken differently is in violation of the principle of trust protection and thus should be revoked.

B) In addition, the amended Enforcement Decree of the Corporate Tax Act corrected the unreasonable criteria in the past, so that it can be applied retroactively, and it is against the principle of fairness to apply only to the special surtax, and to the exclusion criteria of corporate tax exemption for the relocation of the headquarters. Therefore, the disposition of this case which did not recognize corporate tax exemption for the relocation of the Plaintiff’s headquarters,

shall be cancelled by law.

2) As to the penalty tax disposition of this case

In the instant case, even if the principal tax of the instant disposition is lawful, tax in the instant case:

Article 63-2 (2) 2 (a) of the former Restriction of Special Taxation Act provides that "land and buildings shall be exempted from corporate tax reduction or exemption," and there is no provision on the specific scope. Therefore, there may be room to interpret the land and buildings transferred by a corporation as not being subject to the application thereof, and there is an established rule of the Ministry of Finance and Economy on the Restriction of Special Taxation and the interpretation of the Corporate Tax Act. In light of the above, there is a justifiable reason that the plaintiff is not obliged to pay corporate tax according to the favorable opinion that the plaintiff is advantageous to himself/herself.

Therefore, the penalty tax disposition of this case should be revoked in an unlawful manner.

B. Relevant statutes

Attached Form 3 is as specified in the relevant Acts and subordinate statutes.

C. Judgment on the Plaintiff’s assertion

1) As to the main tax of the instant disposition

A) Relevant legal principles

Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds, in particular, among the requirements for reduction and exemption.

Strict interpretation that can be seen as a expressly preferential provision is also the principle of tax equity.

Compared (see, e.g., Supreme Court Decision 2008Du7830, Oct. 23, 2008).

On the other hand, the principle of trust protection is to protect the taxpayer's trust even if it sacrifices the principle of legality.

applicable only in the case of special circumstances that are deemed consistent with this definition.

(1) In order to apply this, the tax authority shall have the right to obtain trust from the taxpayer.

Tax payment for the statement of opinion, ② the statement of opinion of the tax authority that the statement of opinion is justified and trusted;

(3) A taxpayer trust the name of his opinion and thereby does not constitute an act.

(4) If the tax authority imposes a disposition contrary to the above opinion, the interests of the taxpayer would be infringed.

that the outcome would have been caused shall meet all the requirements (Supreme Court on November 26, 2002).

High Court Decision 2001Du9103, see, e.g., Supreme Court Decision 2001Du9103).

The fact that "the taxpayer has expressed a public opinion that is the object of this," must be argued and presented by the taxpayer.

(See Supreme Court Decision 91Nu9824 delivered on March 31, 1992).

B) Whether the Corporate Tax Act and the Enforcement Decree thereof apply mutatis mutandis

(1) The plaintiff's assertion

The Restriction of Special Taxation Act amended by Act No. 6538 of Dec. 29, 2001 (hereinafter "the Restriction of Special Taxation Act of 2002") stipulates that Article 13 of the Addenda to the Special Taxation Act applies to the temporary special tax reduction or exemption clause of this case from the first relocation of the factory or head office to the local area after the enforcement of the amended Act through Article 13 of the Addenda. Since the plaintiff relocated the head office on December 20, 2001 to the local area, the Special Tax Treatment Control Act (the Restriction of Special Taxation Act before the enforcement of the 2002 Act before the enforcement of the 2002 Act) shall apply, and it shall not be applied to the Restriction of Special Taxation Act of 202 and the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458 of Dec. 31, 201; hereinafter "Enforcement Decree of the Restriction of Special Taxation Act of 2002").

The Restriction of Special Taxation Act prior to the filing of the income excluded from the subject of the temporary special tax reduction and exemption shall include the transfer of land and buildings.

There is a gap in the law because the law only provides for the scope thereof and there is no specific provision for the scope thereof.

Since the Ministry of Finance and Economy shall apply the Enforcement Decree of the Corporate Tax Act pursuant to the Act on February 28, 2001 (e.g., 46019-36) and calculate the tax base to be reduced or exempted.

(2) Sub-committee

(A) Article 63-2(1) of the Restriction of Special Taxation Act prior to the enforcement of 2002 provides that "a corporation that relocates its headquarters to an area outside the Seoul Metropolitan life zone may have the corporate tax and special surtax reduced or exempted." Meanwhile, Article 63-2(2)2(a) of the same Act provides that "the amount obtained by subtracting gains on transfer of land and buildings from the tax base for the pertinent taxable year, with respect to the calculation of the tax base to be reduced or exempted in the instant case where the scope of temporary special tax reduction or exemption is determined

28. Article 63-2 (2) 2 of the Restriction of Special Taxation Act prior to the enforcement of 2002 by established rules (e.g., 46019-36);

As to item (a), the corporation that newly built and sold the house transfers the house and the appurtenant land;

income may be excluded from the scope of "transfer margin of land and buildings"

had been.

Article 63-2 (1) of the Restriction of Special Taxation Act, amended in 2002, is an area outside the Seoul Metropolitan life zone.

Any corporation that relocates its head office to another corporation may be subject to reduction or exemption of corporate tax: Provided, That this shall not apply to any corporation that runs real estate business and consumptive service business prescribed by the Presidential Decree

On the other hand, with respect to the calculation of the tax base to be reduced or exempted under Paragraph 2(2)2(a) of the same Article

Transfer margin of land and buildings (the President of a corporation that newly constructs and sells housing) from the tax base of the Do;

excluding income accruing from the transfer of houses and land annexed to houses prescribed by Ordinance;

(c)in the case of a newly constructed and sold corporation's housing and the number of houses;

It stated that capital gains are excluded from those subject to reduction or exemption. On the other hand, the Restriction of Special Taxation Act of 2002

Article 63-2 (2) 2 (a) of the Enforcement Decree of the Restriction of Special Taxation Act, which was delegated by Article 63-2 (2) 2 (a) of the Enforcement Decree of the Restriction of Special Taxation Act in 2002, provides that the amended provisions of Article 63-2 (1) of the Act shall apply from the first relocation of the factory or head office after the enforcement of the Act (Article 13 of the Addenda). In addition, Article 60-2 (5) 1 of the Enforcement Decree of the Restriction of Special Taxation Act, which was delegated by Article 63-2 (2) 2 (a) of the Enforcement Decree of the Restriction of Special Taxation Act in 2002, refers to the land within the area calculated by multiplying the area of the house newly built for sale and the land attached to the house by five times the area on which the building is built.

Accordingly, as a matter of principle, the corporation's transfer margin of housing and land appurtenant thereto.

No temporary special tax amount of this case shall be reduced or exempted, but a business transferring a house or land annexed to a house shall be a business.

In the case of a newly built-sale corporation of a house, the house and the land annexed to the house exceptionally;

capital gains on the transfer of land within the area calculated by multiplying five times the area on which the building is built;

In addition to the tax base of this case, it was possible to obtain the temporary special tax reduction or exemption of this case

(c)

In full view of the developments and contents of the above amendment of the Act, capital gains on the housing and the appurtenant land of a newly constructed and sold corporation, such as the Plaintiff, are subject to the Restriction of Special Taxation Act prior to the enforcement of 2002.

tin The Special Tax Treatment Control Act of 2002 was included in the reduction of and exemption from the temporary special tax, and the Special Tax Treatment Control Act of 2002

by accepting the relevant provision, and making it clear by amending it, at all times the reduction or exemption is made.

of this case. Furthermore, the Act is enforced in Article 13 of the Addenda to the Restriction of Special Taxation Act of 2002.

§ 63-2(1) of the Act shall apply from the first time to the relocation of the factory or head office.

Paragraph (1) (limited to the amount of corporate tax subject to reduction and exemption, and the corporation operating real estate business and consumptive service business

section 63-2(2) of the Act only that is excluded from reduction or exemption (the calculation of the tax base subject to reduction or exemption);

one clause is not a single clause.

Therefore, in the case of the plaintiff, the scope of the temporary special tax reduction and exemption in this case

Article 63-2 (2) of the Restriction of Special Taxation Act (amended by Act No. 63-2 (2) of the Restriction of Special Taxation Act) and Article 60-2 (5) 1 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Act No. 7003 of December 30, 2003, Article 62-2 (2) 2 (a) of the Restriction of Special Taxation Act (excluding income accruing from the transfer of land annexed to a house as prescribed by the Presidential Decree by a corporation that newly constructs and sells a house excluded from reduction and exemption under Article 62-2 (2) 2 (a) of the Restriction of Special Taxation Act) has been deleted, but the former provision applies to a corporation that receives tax benefits by fulfilling the requirements for reduction and exemption under Article 63-2 of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 63-2).

Therefore, in the case of the plaintiff, the Act that does not apply to the Restriction of Special Taxation and Enforcement Decree of 2002

The plaintiff's assertion that the Enforcement Decree of the Corporate Tax Act should be applied to supplement the appropriate gap.

shall not be justified.

(B) Furthermore, considering the following, it is reasonable to deem that the Enforcement Decree of the Corporate Tax Act cannot be applied mutatis mutandis in determining the scope of temporary special tax reduction and exemption.

① The purport that the Plaintiff may apply mutatis mutandis to “Presidential Decree” prescribed in Article 63-2 of the Restriction of Special Taxation Act.

Article 92-2 (4) of the amended Enforcement Decree of the Corporate Tax Act provides that "income accruing from such causes as prescribed by the Presidential Decree" as referred to in Article 55-2 (4) 3 of the Act refers to income falling under any of the following subparagraphs. In light of the language and text of the Act, the term "housing and land attached to a house as prescribed by the Presidential Decree" means a newly built house for sale and land attached to the house, which is within the area calculated by multiplying the area on which the building is built by the regional ratio under each of the following subparagraphs, and the basis for delegation is clearly different from Article 60-2 of the former Enforcement Decree of the Restriction of Special Taxation Act:

(2) The provisions of Article 92-2 (4) of the amended Enforcement Decree of the Corporate Tax Act shall apply to a corporation's non-business

If land is transferred, an amount equivalent to a certain ratio of capital gains shall be imposed as corporate tax.

of a corporation that newly constructs and sells a house and its appurtenant land within a certain area limit

capital gains, such as the land of a corporation, not subject to the additional corporate tax

section of special taxation, and section of the tax base of the corporation relocated outside the Seoul Metropolitan area.

Article 60-2 (5) of the Enforcement Decree of the Restriction of Special Taxation Act and its nature and purpose are different.

(3) Article 92-2 (4) 4 of the Enforcement Decree of the Corporate Tax Act shall apply to a newly built-sale corporation.

On the other hand, Article 60-2 of the former Enforcement Decree of the Restriction of Special Taxation Act is limited to a newly built-sale corporation that is outside the Seoul Metropolitan area and is subject to regulation.

4. Provisions different from the scope and scope of application of two special provisions whose purpose is different in nature as above.

due to the fact that the amended Enforcement Decree of the Corporate Tax Act is only applicable to special surtax under the Corporate Tax Act.

criteria for temporary special tax reduction under the former Restriction of Special Taxation Act, even if not applied, shall be fair only by such criteria.

not to be contrary to the rule of conduct.

C) Whether it violates the principle of trust protection or the principle of equity

The plaintiff is a corporation in which at least the tax authorities interpret Article 62-2 of the former Restriction of Special Taxation Act.

It is argued that the enforcement decree of the tax law is applied mutatis mutandis, so it is regarded as the statement of opinion.

According to the statement in Gap evidence No. 4, the Ministry of Finance and Economy has established the rules of February 28, 2001 (e.g., the same).

46019-36) In the event that a corporation operating the Housing Construction and Sales Business relocates its head office to a local area under Article 63-2 of the Restriction of Special Taxation Act before its enforcement in 2002, income from the transfer of a house which is exempt from special surtax under Article 100 (1) 5 of the former Corporate Tax Act is recognized as having authoritative interpretation, which is within the scope of 'land and building gains excluded from the tax base for the relevant year' in Article 63-2 (2) 2 (a) of the Restriction of Special Taxation Act prior to its enforcement in 2002. However, "the income from the transfer of land attached to the "land and building subject to the exclusion of reduction or exemption" and "the income from the transfer of land attached to the "land" and "the transfer of land attached to the house" under Article 63-2 (2) 2 (a) of the former Enforcement Decree of the Restriction of Special Taxation Act is excluded from the subsequent revision of the Restriction of Special Taxation Act on December 29, 2001.

The meaning of the land attached to the house is defined to mean the land within five times the area on which the building is built (the land within the urban planning area). It is difficult to deem that the interpretation theory prior to the existence of the provision prior to the existence of such provision is preferentially applied in the situation where such provision exists.

(B) At the time, the former Enforcement Decree of the Corporate Tax Act enforced the former Restriction of Special Taxation Act on the non-taxable objects.

For example, as the building was built on the basis of the "area on which the building was built," and the year of the house.

The criteria of "Enemy" were introduced only when it comes to the Enforcement Decree of the Corporate Tax Act amended on February 9, 2006.Furthermore, according to the statement of evidence No. 6, the Corporate Tax Act and the Enforcement Decree of the Corporate Tax Act amended.

Article 92-2(4)4 of the Enforcement Decree of the Corporate Tax Act and Article 60-2 of the former Enforcement Decree of the Restriction of Special Taxation Act do not apply to the interpretation of the Restriction of Special Taxation Act by any provision different from the delegation provision, nature and purpose, and scope of application, and the former Restriction of Special Taxation Act enacted the Restriction of Special Taxation Act.

No interpretation may be made in relation to the previous established rules.

In full view of the above points, as asserted by the Plaintiff, the Corporate Tax Act or the Enforcement Decree.

It can be seen that there was a statement of opinion by the tax authority that the change or interpretation applies to the interpretation of the former Restriction of Special Taxation Act.

Therefore, the plaintiff's assertion that the disposition of this case violates the principle of trust protection is more.

There is no evidence to prove that there is no reason to examine and violate the principle of equity.

(c)

D) Sub-committee

Therefore, the former Enforcement Decree of the Restriction of Special Taxation Act among the land annexed to the instant land reported by the Defendant

Only "area calculated by multiplying five times by the area on which the building is built pursuant to Article 60-2 (5) 1."

Recognizing the transfer margin on the excess area from the tax base of this case

The plaintiff's assertion against this will be justified, and all of this part of the plaintiff's assertion is without merit.

2) As to the penalty tax disposition of this case

A) Additional tax under tax law is to facilitate the exercise of taxation rights and the realization of tax claims.

(2) If a taxpayer violates a duty to report or pay taxes prescribed by the law without any justifiable reason, the law

As administrative sanctions imposed as prescribed by the law, the taxpayer’s intent or negligence is not considered, and the site or mistake of the law does not constitute justifiable grounds (see, e.g., Supreme Court Decision 2013Du1829, May 23, 2013).

In light of the above-mentioned facts, the Plaintiff’s number of houses in this case

In calculating land, Article 60-2 (5) of the former Restriction of Special Taxation Act shall not apply.

For the purposes of applying Article 92-2 (4) 4, legal sites or misunderstandings concerning transitional provisions.

It is reasonable to view that this is due to the reason that the plaintiff can be exempted from the payment of the relevant additional tax.

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

B) However, when a single tax notice imposes both a principal tax and a penalty tax, the separate tax amount and the basis for calculation of the principal tax should be stated in the tax notice. In addition, where multiple types of penalty tax are to be imposed, it is reasonable for the taxpayer to have the content of the respective taxation place known by classifying the tax amount and the basis for calculation, etc., even between the additional tax and the additional tax. As such, in cases where the penalty tax is imposed and the total amount of penalty tax is entered without disclosing the type thereof and the basis for calculation of the additional tax in itself, the relevant imposition disposition cannot be exempt (see, e.g., Supreme Court en banc Decision 2010Du12347, Oct. 18

In full view of the entries in Gap evidence 7-1 to 3 and the purport of the whole pleadings, this shall not apply.

A tax notice regarding a disposition shall contain only the amount of the additional tax, and such additional tax shall be levied.

It is recognized that the grounds for calculation, such as the type and rate, are not stated. According to the above facts, the duty payment notice of the portion of the disposition of this case is a penalty tax required by the relevant statutes

There are defects in omitting each tax amount and the matters to be stated, such as the basis for the reduction, and otherwise the defects shall be supplemented.

there is no evidence to acknowledge that the person has been cured or cured.

Therefore, the part on the penalty tax ○○○ in the disposition of this case is unlawful.

The plaintiff's assertion seeking revocation is with merit.

3. Conclusion

Therefore, the part of the disposition of this case rendered by the defendant against the plaintiff on June 1, 2010 regarding additional tax amounting to KRW 688,395,311 is unlawful and the remaining part is legitimate. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim shall be accepted and dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair with different conclusions, the part of the judgment of the court of first instance which partially accepted the plaintiff's appeal and revoked the different conclusion from the judgment of the court of first instance, and thus, the part of the disposition of this case concerning additional tax amount is revoked, and the remaining