Appropriateness of the carried-over temporary investment credit

92. Where income has been reduced or exempted pursuant to Article 40-4 of the Corporate Tax Act as a result of a factory in an agricultural public zone located in a taxable year 90 taxable year due to a cause of such income, a temporary investment tax amount for 90 taxable year shall not be carried over to 92

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Details of taxation; and

The following facts are not disputed between the parties, or can be acknowledged by the whole purport of the arguments and statements in Gap evidence 1, Eul evidence 3-2, Eul evidence 1-1 to 3, Eul evidence 2-1 to 11, Eul evidence 3-1 to 3, Eul evidence 4, Eul evidence 5, Eul evidence 6, Eul evidence 7-1 to 8, and all the arguments.

(1) 원고는 서울에 본점을 두고 제관 및 인쇄업 등을 영위하고 있는 법인으로서, 1990. 7. 1. 구(舊) 농어촌소득원개발촉진법의 규정에 의하여 지정된 ㅇㅇ도 ㅇㅇ군 ㅇㅇ면 ㅇㅇ리 소재 ㅇㅇ농공지구 안에 공장을 설치하고 입주하여 그 무렵부터 농어촌소득원개발사업을 영위하고 있으며, 위 농공지구 안의 공장을 새로이 설치하기 위하여 1990과세연도에 금 2,583,409,456원 상당의 시설(공관제조 및 금속인쇄의 기계장치)투자를 하였다.

(2) 그런데 원고는 1990과세연도에 위 ㅇㅇ농공지구 안의 공장에서 발생한 소득이 없어서 구 조세감면규제법(1993. 12. 31. 법률 제4666호로 전문개정되기 전의 것, 이하 같다) 제40조의4에 의한 농공지구 입주기업에 대한 당해 공장의 법인세감면신청을 하지 않았고, 또한 같은 과세연도에는 회사 전체의 소득이 결손인 관계로 법인세산출세액이 없어서 같은 법 제72조 제1항에 의하여 위 시설투자에 대하여 인정되는 금 189,079,350원의 임시투자세액공제도 받을 수 없었다.

(3) In the taxable year 192, the Plaintiff filed an application for corporate tax reduction or exemption with a company located in an agricultural industrial zone under Article 40-4 of the former Regulation of Tax Reduction or Exemption Act due to the occurrence of income of KRW 1,385,01,919 at a factory located in the above agricultural industrial zone, and at KRW 83,551,646 of the corporate tax base (total corporate income) for the same taxable year, 463,125,580 won (total corporate tax amount of KRW 83,51,646 of the above corporate tax amount of KRW 87,975,971,97,971,91,91,919 / Total income amount of KRW 2,492,975,975,971,97,971,975,97,971,975,97,97, and97,00,000 won which were carried over for the taxable year 190.

(4) However, on the ground of Article 87(6) of the former Regulation of Tax Reduction and Exemption Act, the Defendant denied the deduction of KRW 71,290,191, which was made by the Plaintiff at the time of the said tax base and tax amount on the ground of Article 87(6) of the same Act that, in cases where corporate tax is reduced or exempted pursuant to Article 40-4 of the same Act, the deduction of KRW 71,290,191, which was made by the Plaintiff at the said tax base and tax amount is not applied repeatedly. The Plaintiff’s corporate tax assessment amount of KRW 83,51,646,00 for the taxable year 192, KRW 463,125,580 for moving-in enterprises in the agro-public zone was calculated by deducting KRW 12,604,105, KRW 383,030,671,000 for the Plaintiff’s additional tax amount, KRW 7,671,000 for the Plaintiff’s tax amount to be paid 197.97.

2. The parties' assertion

In light of the legislative intent of Article 87 of the former Regulation of Tax Reduction and Exemption Act, where corporate tax is reduced or exempted pursuant to paragraph (6) of the same Article means the period during which corporate tax is reduced or exempted pursuant to Article 40-4 of the same Act for a corporation operating an agricultural and fishing village income source development business within the agricultural and fishing village area. Even if it is not so, the above corporation shall be excluded from a temporary tax credit for investment under Article 72 of the same Act or a carried-over deduction of the above temporary investment tax amount under Article 89 of the same Act for the taxable year in which corporate tax is reduced or exempted pursuant to Article 40-4 of the same Act. Thus, the defendant asserts that the defendant's failure to deduct the temporary investment tax carried over in the taxable year of 190 in imposing corporate tax on the plaintiff in the taxable year of 192, in accordance with the above interpretation, is lawful.

In light of the legislative intent of the former Regulation of Tax Reduction and Exemption Act that provides for special cases concerning tax reduction and exemption and tax credit, and the fact that Article 40-4 (1) of the same Act provides that a person who intends to be subject to tax reduction and exemption shall file an application for reduction and exemption, "where corporate tax under Article 87 (6) of the same Act is reduced and exempted" shall be interpreted as "where a company moving into the Agricultural and Fishing Zone is actually reduced or exempted from corporate tax by making an application for reduction and exemption." Therefore, a company moving into the Agricultural and Fishing Zone shall be allowed to obtain a temporary tax credit for the company under Article 72 (3) of the same Act by selectively applying Article 40-4 (3) of the same Act to the taxable year in which income accrues in the factory located in the Agricultural and Fishing Zone, or a temporary tax credit for the company under Article 72 of the same Act shall be allowed to obtain a tax reduction and exemption under Article 87 (6) of the same Act and, in such case, it does not require an application for reduction and exemption under Article 87 (9) of the same Act.

Article 40-4 (1) of the former Regulation of Tax Reduction and Exemption Act provides that the income tax or corporate tax on the income accruing from the relevant factory shall be reduced or exempted by applying mutatis mutandis Article 15 (1) of the same Act to a national who runs a business of developing the income sources of agricultural and fishing villages within a farming and fishing village district under the Agricultural and Fishing Villages Income Development Promotion Act (amended to an agricultural and fishing village pursuant to Article 4282 of the same Act on December 31, 190). In this case, the date of establishment shall be the date of occupancy as prescribed by the Presidential Decree, and Article 33-3 (3) of the same Act provides that the person who wishes to be subjected to the above paragraph (1) of the same Article shall be eligible for the tax reduction or exemption as prescribed by the Presidential Decree. According to Article 33-3 (1) of the same Act, the date of establishment of a new factory within the farming and fishing village area means the date of operation of a business, and Article 15 (1) of the same Act provides that the entire amount of income tax on the relevant business shall be reduced or exempted within 5 years.

Article 72 (1) of the same Act provides that, if the Government deems it necessary for business adjustment, the tax amount equivalent to the amount calculated by multiplying the amount of investment (excluding any investment made in used goods) prescribed by the Presidential Decree by 3/100 (10/10 in the case of investment made using domestic machinery and materials prescribed by the Presidential Decree) shall be deducted from the income tax or corporate tax for the taxable year prescribed by the Presidential Decree. Article 57-2 (1) of the Enforcement Decree of the same Act provides that, within the scope of 7 years old, the amount of tax reduction or exemption for small or medium enterprises under the provisions of Article 47 of the same Act (the tax reduction or exemption for small or medium enterprises under the provisions of Article 47 of the same Act) and the amount of tax reduction or exemption for small or medium enterprises under the provisions of Article 72 (1) of the same Act (the provisions of Article 47 of the same Act, the provisions of Article 108 of the same Act shall apply to the reduction or exemption of corporate tax for the following taxable year, the amount of 70/10/1) shall be deducted from the corporate tax.

4. Determination

A. Article 40-4 of the former Regulation of Tax Reduction and Exemption Act (Tax Reduction and Exemption for Moving-in Enterprises in Agricultural and Fishing Villages) provides that an invested company shall provide support for reduction and exemption of corporate tax, etc. for a certain period from the date of moving-in to a farming zone for the purpose of promoting the balance between regions, and Article 72 of the same Act provides that an enterprise which has invested in a certain facility investment shall provide support to deduct a certain portion of the investment amount from corporate tax, etc. for the purpose of laying the foundation for continuous stability through restructuring through corporate restructuring by promoting investment in facilities, and the legislative purpose of which is to achieve by providing the enterprise with tax support in accordance with the special provisions on tax reduction and exemption and the above tax credit provisions is distinguishable.

Article 87 (6) of the same Act provides that "where income tax or corporate tax is reduced or exempted by the provisions of Article 40-4 of the same Act, the provisions of Article 72 of the same Act shall not apply." Thus, the legislative intent of excluding such overlapping application is to prevent unfair tax burden among enterprises and to ensure national tax revenue by preventing excessive tax support to enterprises." However, Article 87 (6) of the same Act provides that where corporate tax is reduced or exempted by the provisions of Article 40-4 of the same Act, it shall not apply only to cases where a company is allowed to obtain temporary tax credit by carrying it over to a factory for the same taxable year under Article 40-4 of the same Act, and it shall not be subject to tax credit under Article 72 of the same Act for the corresponding taxable year because it is difficult for it to obtain temporary tax credit by carrying it over to a factory for the same taxable year under Article 190 of the same Act, and therefore, it shall not be subject to tax credit under Article 90-4 and Article 159-13 of the same Act for the corresponding taxable year.

However, in the taxable year of 190, the plaintiff has been operating an agricultural and fishing village income source development project by investing facilities (only to acquire new machinery and equipment used directly for the manufacturing business, which is the plaintiff's business) in the factory in order to build a factory in the agricultural and fishing village. Thus, the above investment in the facilities in the taxable year of the plaintiff is included in the agricultural and fishing village and is ultimately identical to the investment to carry on the above business. Accordingly, if one company's identical investment in the same taxable year overlaps with the above tax reduction and exemption support and the above tax credit support, it is obvious that it is against the legislative intent of Article 87 (6) of the same Act to prevent unfair tax burden among the enterprises and to secure the state's tax revenue, on the other hand, it cannot be deemed that there is a reasonable reason only if the company's investment in facilities is substantially the same as the investment in the agricultural and fishing village business to carry on the business, and it is reasonable to interpret that the company's temporary investment reduction and exemption of corporate tax under Article 40-4 of the same Act in the taxable year.

However, in the taxable year 192, the Plaintiff applied for a reduction or exemption of corporate tax under Article 40-4 of the same Act as the Plaintiff earned income from a factory located in the agricultural commercial zone located in the taxable year 1990, and actually received corporate tax reduction or exemption under the same Act. Thus, pursuant to Article 87(6) of the same Act, the deduction carried forward for the taxable year 1992 of the amount of tax credit for the said temporary investment that was carried forward to operate a business after moving into the said agricultural commercial zone in the taxable year 190 shall

Therefore, in calculating the corporate tax amount of the Plaintiff 192 taxable year, the instant taxation disposition, which was conducted by denying the carried-over deduction of the amount equivalent to the said amount of temporary investment credit, is lawful. 5. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit, and it is decided as per Disposition by applying Article 8 (2) of the Administrative Litigation Act and Article 89 of the Civil Procedure Act to the burden of litigation