Daejeon District Court 2013Guhap651 ( December 04, 2013)

Where the Enforcement Decree is deleted with the transitional provisions and the transitional provisions are not required, the legal effect;

Under the structure that creates a single legal effect by integrating with the enforcement decree that determines the specific matters according to the delegation of the Act, in the event that the enforcement decree is deleted as the Act was deleted, and the amended enforcement decree maintains the right to obtain benefits, there is no ground to view that there is no principle of legislative technology that the amended enforcement decree requires separate transitional provisions.

2014Nu1002 Revocation of disposition of imposing corporate tax

-Appellee

D Co., Ltd.

-Appellant

The Director of the National Tax Service

June 12, 2014

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The Defendant’s imposition of corporate tax for the business year 2006 against the Plaintiff on August 1, 201, the corporate tax for the business year 2007, the corporate tax for the business year 2007, the corporate tax for the business year 2008, and the corporate tax for the business year 2009 is revoked.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant revoked each disposition of the corporate tax of 2006 for the plaintiff on August 1, 201, the part exceeding the OOO directors among the OO directors of the corporate tax of 2006, the part exceeding the OO directors among the OO directors of the corporate tax of 2007, the part exceeding the OO directors among the OO directors of the corporate tax of 2008, the part exceeding the OO directors among the OO directors of the corporate tax of 208, and the imposition of the OO directors of the corporate

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Quotation of judgment of the first instance;

This Court's reasoning is as follows, except for the dismissal or addition of each corresponding part of the judgment of the court of the first instance, and therefore, it is identical to the corresponding part of the judgment of the court of the first instance. Thus, this Court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

• up to 10 pages 9, 16 to 10, as follows:

Comprehensively taking account of the following circumstances revealed through the aforementioned relevant legal principles and related statutes, “Presidential Decree” as prescribed by Presidential Decree in Article 63-2(2)2(a) of the former Restriction of Special Taxation Act (hereinafter “Presidential Decree of this case”) shall be interpreted to mean Article 60-2(5) of the former Enforcement Decree of the Restriction of Special Taxation Act even after the amendment on December 30, 203.

(A) Under the structure that creates a single legal effect by integrating with the enforcement decree that determines the specific matters according to the delegation of the statute, where the enforcement decree is deleted as a result of the removal of the statute, and the enforcement decree maintains the vested right, there is no ground to view that the amended enforcement decree has the principle of legislative technology that requires separate transitional provisions.

(B) In particular, in a case where the existing enforcement decree was amended in the form of deletion as seen in the instant case, there is no possibility of misconception as to what enforcement decree should be applied to the existing enforcement decree and the amended enforcement decree, so there is no need to keep a separate transitional provision under the amended enforcement decree (in a case where the enforcement decree is amended in the form of deletion of water, if there are two transitional provisions, it would be more clear that the statutory interpretation would be more clear, and thus, it would be desirable to place a separate transitional provision. However, this is a discussion about desirable legislative techniques, and it is not directly related to the interpretation of the enforcement decree of the instant case in which the enforcement decree is amended in the form of deletion

(C) It is natural to interpret that Article 38(2) of the Addenda to the Restriction of Special Taxation Act includes not only Article 63-2 of the former Restriction of Special Taxation Act, but also Article 60-2 of the former Enforcement Decree of the Restriction of Special Taxation Act enacted with delegation from Article 63-2 of the former Restriction of Special Taxation Act.

(D) As seen earlier, the amended Restriction of Special Taxation Act does not grant any benefit of temporary special tax reduction or exemption to a corporation that newly built and sold a house that had been transferred to an area outside the Seoul Metropolitan area after the amendment of the Restriction of Special Taxation Act. However, Article 38(2) of the Addenda of the amended Restriction of Special Taxation Act to continue to grant any benefit of temporary special tax reduction or exemption which had been previously granted to the previous corporation prior to the enforcement of the amended Restriction of Special Taxation Act. Therefore, the instant Presidential Decree refers to Article 60-2(5) of the former Enforcement Decree of the Restriction of Special Taxation Act to interpret that a corporation newly built and sold a house that had already been transferred prior to the enforcement of the amended Restriction of Special Taxation Act can receive only the amount of temporary special tax reduction or exemption already received. Since Article 60-2(5) of the former Enforcement Decree of the Restriction of Special Taxation Act was abolished, Article 92-2(4) of the Enforcement Decree of the Corporate Tax Act should be applied mutatis mutandis to the Presidential Decree of the same case, and the Plaintiff’s assertion that such increase of temporary tax reduction or exemption can also be justified.

(E) The Plaintiff asserts that Article 60-2 (5) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 11, 11, and 12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 20035, Dec. 30, 2003); Article 11 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 11, 2002; Presidential Decree No. 60-2 (5) of the Restriction of Special Taxation Act (amended by Presidential Decree No. 60-2, 11, and 12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 60-2, 60-2, 11, and 12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 60-2, Jan. 2, 2005) has been amended.

(F) Meanwhile, Article 92-2 (4) of the Enforcement Decree of the Corporate Tax Act, which states that the plaintiff may apply mutatis mutandis to the Presidential Decree of this case, provides that "income accrued from the reasons prescribed by the Presidential Decree" shall mean income falling under any of the following subparagraphs. Article 92-2 (4) of the Enforcement Decree of the Corporate Tax Act, which is clearly different from Article 60-2 of the former Enforcement Decree of the Restriction of Special Taxation Act. Article 92-2 (4) of the Enforcement Decree of the Corporate Tax Act, provides that "where a corporation transfers non-business housing and its appurtenant land, it shall be additionally imposed an amount equivalent to a certain ratio of transfer income as corporate tax on the corporation's land subject to the special taxation on the transfer income of the corporation which newly built the housing and its appurtenant land within a certain limit of transfer area, and Article 60-2 (5) of the former Enforcement Decree of the Restriction of Special Taxation Act and Article 92-2 (4) 4 of the Enforcement Decree of the Corporate Tax Act applies to the new construction and sale corporation, while Article 60-2 (4) of the former Enforcement Decree of the Corporate Tax Act applies mutatis mutandis.

(3) Therefore, pursuant to Article 60-2 (5) 1 of the former Enforcement Decree of the Restriction of Special Taxation Act, the Defendant recognized only the area calculated by multiplying the area fixed by the building by five times among the land annexed to the instant house, which was reported by the Plaintiff, and it is justifiable to exclude transfer margin on the area exceeding this limit from the tax base subject to reduction and exemption. The Plaintiff’s assertion contrary thereto is without merit.

•The addition between the 11rd page 20' and the 11st page 20'.

According to Article 63-2 (1) 1 of the former Restriction of Special Taxation Act, the defendant shall be a corporation with its head office or principal office in the overconcentration control region of the Seoul Metropolitan area for at least five consecutive years, and Article 63-2 (7) 2 of the former Restriction of Special Taxation Act provides that when a corporation relocated its head office outside the Seoul Metropolitan area discontinues its business or is dissolved within three years from the date of commencing its business, the tax amount calculated as prescribed by the Presidential Decree shall be paid as corporate tax under the conditions as prescribed by the Presidential Decree. The defendant asserts that the income accrued from a new type of business added after three years from the date of relocating its head office to the Seoul Metropolitan area shall not be included in the income subject to the tax base of this case. However, the above provisions cited by the defendant shall not be actively included in the requirements for the relocation of its head office and the requirements for the return of temporary tax reduction and exemption since it can not be concluded that the new purpose of the relocation of its head office after the relocation of its head office to an area other than the Seoul Metropolitan area may not be included in the relocation.

· from 14 pages 10 to 19, as follows:

In order to facilitate the exercise of the right to impose taxes and the realization of tax claims, additional tax under tax law is an administrative sanction imposed pursuant to the law if a taxpayer violates a return, tax liability, etc. as prescribed by the law without justifiable grounds, and the taxpayer’s intent or negligence is not considered. It is unreasonable for the taxpayer to be unaware of his/her duty due to conflicting opinions due to the intention of tax interpretation beyond the simple scope of the law or the suspicion beyond the scope of the misunderstanding, and it is unreasonable for the taxpayer to be unaware of his/her duty, or there is a circumstance that it is unreasonable for the taxpayer to expect the fulfillment of his/her duty to pay taxes to the taxpayer, unless there is a justifiable reason to believe that it is not attributable to the taxpayer’s failure to perform his/her duty (see, e.g., Supreme Court Decision 2002Du666, Aug. 23, 2002).

In light of the above legal principles, it is difficult to say that there is a possibility of special mistake as to the application of the Enforcement Decree between the existing Enforcement Decree and the revised Enforcement Decree of the Corporate Tax Act in the following circumstances, which can be seen by adding the description No. 15-1 and No. 15-2 to the whole purport of the arguments in the related Acts and subordinate statutes, i.e., ① in the case where the existing Enforcement Decree is deleted, it is difficult to say that there is a possibility of special mistake as to the interpretation of the Acts and subordinate statutes, ② in the case where the Presidential Decree of this case is deemed to be Article 60-2(5) of the former Enforcement Decree of the Restriction of Special Taxation Act, and in the case where Article 92-2(4)4 of the amended Enforcement Decree of the Corporate Tax Act is deemed to be applied to the Plaintiff’s land and building that can be subject to tax reduction or exemption for 206 business years, the Plaintiff’s application for additional tax reduction or exemption for the total area of 40 business years can not be applied to the Plaintiff.

• Up to August 1, 201, Pursuant to the first sentence of 16, "Act No. 1037, Aug. 5, 201."

2. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is just in this conclusion, the plaintiff and the defendant's appeal are dismissed as it is without merit, and it is so decided as per Disposition.