If the aggregate capital exceeds 100 billion won, whether to apply the deferment system of small and medium enterprises;

A small and medium enterprise grace system under the Restriction of Special Taxation Act may not be applied where its capital in a particular business year exceeds 100 billion won and accordingly the capital of the enterprise concerned exceeds 100 billion won.

Article 2 (2) of the Enforcement Decree of the Restriction of Special Taxation Act

Daejeon District Court-2017-Gu Partnership-102869

Co., Ltd.

The Director of the National Tax Service

on 01 01. 01

December 2017 06

1. Details of the disposition;

(a) Expiration of the Enforcement Decree of the Framework Act on Small and Medium Enterprises and the Restriction of Special Taxation Act;

1) The Enforcement Decree of the Framework Act on Small and Medium Enterprises amended by Presidential Decree No. 21368 on March 25, 2009 is small and medium enterprises.

Article 3 subparagraph 2 of the Act on the Protection of Small and Medium Enterprises

in addition to section 7-22), in the case of a company belonging to an “affiliated company”(1), a full-time employee calculated under section 7-22.

The number, capital, sales, equity capital, or total assets of any corporation exceeds the standards set forth in subparagraph 1 of Article 3.

section 1(1) of the Addenda provides that the corporation shall not be an enterprise, and Article 3(2)(c) of the Addenda shall be amended.

The provisions stipulate that they will enter into force on January 1, 201.

2) After December 30, 2010, the Enforcement Decree of the Restriction of Special Taxation Act was amended by Presidential Decree No. 22583, Dec. 30, 2010

In the meantime, Article 3 of the Enforcement Decree of the Framework Act on Small and Medium Enterprises is the actual independence of Article 2(1)3.

It shall meet the provisions of subparagraph 2 (a) through (c), and the latter part of this case shall be small and medium.

Article 3 (1) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises in applying Article 3 (2) (c) of the Framework Act.

section 2(1) other than each subparagraph of the Enforcement Decree of the Restriction of Special Taxation Act

In the end, a company belonging to an affiliated company shall be deemed to meet the criteria under the proviso.

tax characteristics such as the number of regular workers calculated under Article 7-2 of the Enforcement Decree of the Framework Act on Small and Medium Enterprises;

1) As amended by Presidential Decree No. 23412 on December 28, 2011, its name was changed to “related enterprise”.

2) As amended by Presidential Decree No. 23412 on December 28, 2011, it moved to Article 7-4.

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An enterprise meeting the standards under the proviso to Article 2 (1) of the Enforcement Decree of the Restrictions Act with the exception of its subparagraphs.

The criteria of related enterprises were defined as the requirements of small and medium enterprises. On the other hand, the above criteria were defined as the requirements of small and medium enterprises.

Article 1 of the Addenda to the Enforcement Decree (Article 3 subparagraph 2 of the Enforcement Decree of the Framework Act on Small and Medium Enterprises)

The amended provisions of the latter part and the latter part shall have been in effect on January 1, 2012 and shall have been in force on January 1, 2012.

(c)

B. The status and equity capital of the Plaintiff and AAA Co., Ltd. (hereinafter referred to as “foreign company”);

The plaintiff is a corporation incorporated on December 23, 1955 and engaged in the business of manufacturing and selling medicines.

Ro. The non-party company holds 46.12% of the Plaintiff’s shares, and the Plaintiff and non-party company are small and medium enterprises.

A related company prescribed by the Enforcement Decree of the Framework Act. The Plaintiff’s equity capital is the business year 2011.

95,984,404,236 won, and 103,941,218,481 won in the business year 2012.

(c)declaration, payment, request for correction, etc. of corporate tax;

1) The Plaintiff reported and paid each corporate tax for the business year from 2012 to 2015, and on July 4, 2016

Claimant that the grace period should be applied to Gohap in 2012 to 2015,

Special tax reduction referred to in Articles 7, 7-2 and 10 of the Restriction of Special Taxation Act for corporate tax unpaid.

3,684,248,670 won corresponding to the difference with corporate tax calculated by applying cotton, etc. (2012 business year)

72,225,620 won, 789,909,850 won for the business year 2013, 813,832,610 won for the business year 2014, 2015gs

The amount of KRW 867,466,420 for the business year was claimed to be refunded.

2) The Defendant: (a) August 31, 2016, Article 2 subparag. 1 of the Enforcement Decree of the Restriction of Special Taxation Act with the Plaintiff’s equity capital.

In excess of KRW 1,00,00,000, which is the standards for relevant enterprises prescribed in subparagraph 3 of the same paragraph, and in respect of the plaintiff

For the reasons that the grace period deemed a small or medium enterprise under the proviso to paragraph (2) is excluded;

The plaintiff's request for correction concerning the part other than the tax credit, tax reduction, exemption, etc. applicable to the business

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The refusal was made (hereinafter referred to as the "disposition of this case").

3) The Plaintiff, who is dissatisfied with the instant disposition, filed a petition for adjudication with the Director of the Tax Tribunal on October 17, 2016.

B. However, the Director of the Tax Tribunal dismissed the plaintiff's request on February 22, 2017.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, and 3 (including branch numbers in case of additional number)

Each entry, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff’s equity capital in the business year 2012 exceeds KRW 100 billion, and the Restriction of Special Taxation Act

It does not constitute a small or medium enterprise prescribed by the Ordinance of the Republic of Korea, and as a result, according to the standards of related enterprises.

In addition, small and medium enterprises are not small and medium enterprises.

In such cases, ① Enforcement Decree of the Restriction of Special Taxation Act (Presidential Decree No. 22583, Dec. 30, 2010)

section 2(2) and (5) of the Enforcement Decree of the Restriction of Special Taxation Act (hereinafter referred to as the "Enforcement Decree of the Restriction of Special Taxation Act").

The grace period is applied to the whole business year from 2012 to 2015.

Article 9 subparag. 4 of the Enforcement Decree of the Framework Act on Small and Medium Enterprises amended by Presidential Decree No. 24799, Oct. 16, 2013

Where a small or medium enterprise owns shares of another small or medium enterprise, notwithstanding relevant business standards;

Since it is stipulated as a small enterprise, at least after the enforcement of the above amended provision, 2014 business year.

For the year 2015, the grace period for small and medium enterprises should be applied.

Nevertheless, the Defendant’s grace period for the entire business year from 2012 to 2015

Since the disposition of this case was determined not to be applied in a simplified manner, it shall be cancelled in an unlawful manner.

required by the corporation.

B. Relevant statutes

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It is as shown in the attached Form.

C. Determination

1) The main sentence of Article 2(2) of the Enforcement Decree of the Restriction of Special Taxation Act

by a small or medium enterprise due to its expansion, etc. or falls under the proviso to the part other than the subparagraphs of the same paragraph.

If a small or medium enterprise ceases to be a small or medium enterprise following exceeding the standards under subparagraph 1, such company for the first time;

Small and Medium enterprises for the taxable year including the date of occurrence of oil and for the taxable year following the three taxable years:

After the expiration of the period, whether it is a small or medium enterprise pursuant to paragraph (1) for each taxable year

by stipulating that it is ".........", the tax reduction for small and medium enterprises.

The grace period for small and medium enterprises maintaining the benefit of face-to-face shall be the Act on the Restriction of Special Taxation.

The proviso to Article 2 (2) shall not apply to a small or medium enterprise in accordance with the standards for relevant enterprises.

The grace period is not applicable to small enterprises.

The amendments to the Enforcement Decree of the Framework Act on Small and Medium Enterprises and the Restriction of Special Taxation

In light of the foregoing, a company alone is a small and medium enterprise in the same business year as the Plaintiff.

and as a result, it is not a small or medium enterprise in accordance with the standards of the related enterprises.

the application of the main sentence of Article 2(2) of the Enforcement Decree of the Restriction of Special Taxation Act to the grace period

It is reasonable to view that it cannot be possible.

A) The Enforcement Decree of the Framework Act on Small and Medium Enterprises and the Enforcement Decree of the Restriction of Special Taxation

The purpose of introducing the corporate standards is to introduce such standards to an enterprise group substantially not treated as a small and medium enterprise;

The purpose is not to grant the benefits of tax reduction and exemption.

B) The Enforcement Decree of the Framework Act on Small and Medium Enterprises and the Enforcement Decree of the Restriction of Special Taxation Act from March 25, 2009

The introduction of the enterprise criteria in succession, but its implementation is delayed on January 1, 2012.

- - Other

Simplified granted.

C) even if the equity capital of any enterprise is less than 100 billion won, the period of the enterprise concerned;

(1) The grace period of the small and medium enterprise shall apply to this enterprise, except in the scope of the

It is clear in accordance with the proviso of Article 2(2) of the Enforcement Decree of the Restriction of Special Taxation Act.

If the equity capital exceeds 100 billion won solely, the small and medium enterprises with due regard to such circumstances;

applying the grace period, if the enterprise itself is not a small and medium enterprise, the small and medium enterprise.

The introduction of standards for related enterprises, such as granting more favorable benefits for tax reduction or exemption than in the case of business;

The purpose is to reverse the purpose of this Act.

2) In addition, Article 2(5) of the Enforcement Decree of the Restriction of Special Taxation Act Article 3 of the Framework Act on Small and Medium Enterprises

Existing criteria for size, criteria for restrictions on mutual investment, and persons prescribed in paragraph (1) 2, attached Table 1, and attached Table 2;

any change in direct or indirect ownership standards and related enterprise standards of a corporation with a total amount of at least 500 million won;

applicable in cases where the licensee becomes a small or medium enterprise or is not a small or medium enterprise;

and the Enforcement Decree of the Framework Act on Small and Medium Enterprises and the Restriction of Special Taxation.

As seen earlier, the grace period following the grace period is separately set out in the Addenda to each Enforcement Decree;

No grace period shall be applied to small and medium enterprises under this Article.

3) In addition, the Enforcement Decree of the Restriction of Special Taxation Act amended by Presidential Decree No. 26070 on February 3, 2015

2. Paragraph 2 of Article 2 provides that a company shall not be a small or medium enterprise in accordance with the standards of the relevant company.

Although the grace period for small and medium enterprises is stipulated in Article 4 of the Addenda to the above Enforcement Decree, the above provision shall apply.

The amended provisions are first amended after the enforcement of the Restriction of Special Taxation Act (Act No. 12853) ( January 1, 2015).

applicable from the occurrence of a cause not to be a small or medium enterprise. As such, the Plaintiff is the same as the Plaintiff.

Before the enforcement of the above Act, it has already become small and medium enterprises in accordance with the standards of relevant enterprises.

- - Other

In cases of small and medium enterprises, the grace period shall not apply.

(4) A small and medium enterprise subject to the application of special taxation under the Restriction of Special Taxation Act.

Whether or not to defer shall be determined in accordance with the Restriction of Special Taxation Act and the Enforcement Decree of the Restriction of Special Taxation Act.

C. As can not be determined by the Framework Act on Small and Medium Enterprises (Supreme Court Decision 2013Du2015 Decided April 23, 2015)

10458) The Enforcement Decree of the Framework Act on Small and Medium Enterprises is amended, as alleged by the Plaintiff, so small and medium enterprises.

in holding shares of other small and medium enterprises, notwithstanding relevant enterprise standards;

(2) If the amendment of the Enforcement Decree of the Framework Act on Small and Medium Enterprises

In the year 2014, 2015, the Enforcement Decree of the Restriction of Special Taxation Act shall apply to the grace period for small and medium enterprises.

No guidance shall be made.

5) Ultimately, in 2012, became a small and medium enterprise in accordance with the relevant business standards.

The plaintiff can not apply the grace period for the small and medium enterprise, and the disposition of this case on the same premise

Sector is legitimate. The plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered.

shall be determined as above.