2013 depth 51 (201. 04.11)

Whether the Plaintiff constitutes a small or medium enterprise under Article 2 of the former Enforcement Decree of the Restriction of Special Taxation Act

The plaintiff could be a small or medium enterprise if the former Enforcement Decree of the Act was enforced, but the Enforcement Decree of the Act on the Promotion of Special Taxation was enforced on January 1, 2006, and thus does not fall under a small or medium enterprise. Thus, it constitutes "when it comes not to fall under a small or medium enterprise due to the amendment of Article 2 (5) of the Enforcement Decree of the

Article 2 of the Enforcement Decree of the Restriction of Special Taxation

Jeonju District Court-2013-Guhap-1635 (O. 24, 2015)

Co., Ltd.

○ Head of tax office

2015.05.27

2015.06.24

1. The Defendant’s imposition of corporate tax for the taxable year 2009 against the Plaintiff on July 27, 201 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a corporation that runs the manufacturing business of the mountain field active agents, etc., and the Plaintiff owns 40/100 of the total number of shares generated by ○○ Maintenance Company, an unlisted corporation (hereinafter “○○ Maintenance”).

B. Special taxation cases when the Plaintiff filed a corporate tax return for the business year in 2009 (from October 1, 2008 to September 30, 2009)

Under the Restriction Act, corporate tax is reduced or exempted by applying for special tax reduction for small and medium enterprises and tax credit for research and human resources development expenses.

C. The defendant on the last day of the business year 2008 (from October 1, 2007 to September 30, 2008), which was the previous business year.

Based on the total amount of 00 billion won or more, 30/100 of the total amount of shares generated by the plaintiff

In the year 2009, the Plaintiff owns more than

The Restriction of Special Taxation Act on the grounds that it does not constitute a small or medium enterprise subject to tax credit;

In July 27, 201, the provision on reduction and exemption of the tax amount related to small and medium enterprises was excluded, and on July 27, 201, the corporate tax of 2009 was imposed on the plaintiff (including additional tax 00 won) (hereinafter referred to as the "instant disposition of imposition").

D. On September 20, 201, the Plaintiff appealed and filed a request for review with the Board of Audit and Inspection on September 20, 201, but on April 11, 2013.

was dismissed.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 and 2 (including a branch number if there is a branch number);

each entry of evidence of subparagraphs 1 through 4 and the purport of the whole pleading

2. The plaintiff's assertion

(a) Application of the grace period under the Enforcement Decree of the Restriction of Special Taxation Act;

Where a company becomes no longer a small or medium enterprise due to the amendment of the attached Table of the Enforcement Decree of the Framework Act on Small and Medium Enterprises pursuant to Article 2 (5) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006, hereinafter referred to as the "former Enforcement Decree of the Restriction of Special Taxation Act"), special taxation related to small or medium enterprises shall apply for the business

As of the business year 2005, the Plaintiff, whose total assets amounted to approximately KRW 605 billion, owned 40/100 of the total number of outstanding shares, is a small or medium enterprise under Article 3 subparagraph 2 and attached Table 2 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises (amended by Presidential Decree No. 19189 of Dec. 27, 2005; hereinafter referred to as the "former Enforcement Decree of the Framework Act on Small and Medium Enterprises"). However, the Plaintiff was a small or medium enterprise under Article 3 subparagraph 2 and attached Table 2

12. Since the amendment of the Enforcement Decree of the Framework Act on Small and Medium Enterprises (amended by Presidential Decree No. 19189, supra) by Presidential Decree No. 19189, the Enforcement Decree of the Framework Act on Small and Medium Enterprises (hereinafter referred to as the “Enforcement Decree of the Framework Act on Small and Medium Enterprises”) does not constitute a small and medium enterprise, it shall be deemed a small and medium enterprise subject to special taxation related

Nevertheless, the provision on reduction and exemption of the tax amount related to small and medium enterprises under the Restriction of Special Taxation Act.

The instant disposition, which excluded the application, should be revoked as it is unlawful.

(b) Application of grace period under the Enforcement Decree of the Framework Act on Small and Medium Enterprises;

The plaintiff was not a small or medium enterprise because it fails to meet the actual independence requirement of corporate ownership and management under Article 3 subparagraph 2 of the Enforcement Decree of the Framework Act on Small and Medium Enterprises. However, Article 2 (2) of the Addenda of the amended Framework Act on Small and Medium Enterprises provides a grace period until December 27, 2008, when an enterprise falling under a small or medium enterprise becomes no longer a small or medium enterprise due to the amendment of the above Enforcement Decree, the amendment of the above Enforcement Decree shall be deemed a small or medium enterprise.

Therefore, the plaintiff's period from October 1, 2008 to October 2008 is a small or medium enterprise in 2009.

12. A period that does not fall under 27.27) exists (from December 28, 2008 to September 30, 2009). In such a case, there is no separate provision under tax-related Acts, and the Plaintiff shall be deemed a small and medium enterprise until the period falls under the whole or at least a small and medium enterprise in 2009.

Nevertheless, it excluded the Plaintiff from the application of the provision on reduction and exemption of tax amount related to small and medium enterprises.

The disposition of this case shall be revoked in an unlawful manner.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. As to the assertion on the application of the grace period under the Enforcement Decree of the Restriction of Special Taxation Act

1) Whether the grace period is applied

A) Article 2(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007) provides for the special taxation for small and medium enterprises in Chapter II, Section 1, etc., and Article 2(1) of the former Enforcement Decree of the Restriction of Special Taxation Act provides for the requirements for the type, size, independence, etc. of small and medium enterprises subject to such special taxation requires that the actual independence of the requirement should be in compliance with Article 3(2) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises. In the meantime, Article 2(5) of the former Enforcement Decree of the Restriction of Special Taxation Act provides that in applying Article 2(1) of the former Enforcement Decree of the Restriction of Special Taxation Act, if a company ceases to be a small and medium enterprise due to

Meanwhile, Article 3 subparagraph 2 and attached Table 2 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises are one of the standards for actual independence of the ownership and management of small and medium enterprises.

Article 3 subparag. 1 (b) of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises requires that a corporation shall not own more than 30 percent of the total assets of 50 billion won. Article 3 subparag. 1 (b) of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises shall be a corporation whose total assets (referring to the total assets indicated on the balance sheet as of the end of the immediately preceding business year; hereinafter the same shall apply) are more than 50 billion won. However, as the former Enforcement Decree of the Framework Act on Small and Medium Enterprises was amended by Presidential Decree No. 19189 on December 27, 2005, Article 3 subparag. 1 (b) of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises was amended as "corporation whose total assets are more than 50 billion won." Article 3 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises does not require that a corporation shall not own more than 30 percent of the total issued stocks.

B) In full view of the facts that there was no dispute between the parties, the entry of Gap evidence No. 2, and the purport of the entire pleadings as to the instant case, the ○○ Maintenance, which holds 40/100 of the total number of the Plaintiff’s issued and outstanding shares, is an unlisted corporation, and the Plaintiff’s total assets as of the end of the business year 2005 (from October 1, 2004 to September 30, 2005), can be recognized as having been KRW 605 billion.

If Article 3 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises continued to be implemented, the Plaintiff was a non-listed corporation that holds 40/100 of the total number of issued and outstanding shares in the business year 2006, and thus, the Plaintiff was a small and medium enterprise regardless of the total amount of assets in the 006 business.

As the Enforcement Decree of the Framework Act on Small and Medium Enterprises was enforced from October 1, 2005 to September 30, 2006, the plaintiff, who holds more than 30/100 of total assets of 500 billion won and more than total assets of Do, does not constitute a small and medium enterprise in 2006 regardless of whether ○○ Maintenance was an unlisted corporation, so the plaintiff constitutes "when it comes not to fall under a small and medium enterprise due to the amendment of the Enforcement Decree of the Framework Act on Small and Medium Enterprises" under Article 2 (5) of the Enforcement Decree of the Framework Act on Special Taxation.

Therefore, pursuant to Article 2(5) of the former Enforcement Decree of the Restriction of Special Taxation Act, the Plaintiff was postponed as a small and medium enterprise by the taxable year of 2006 and the taxable year of 2007, the taxable year of 2008, and the taxable year of 2009. However, the instant disposition that excluded the Plaintiff from the application of the special taxation of small and medium enterprise is unlawful.

2) Judgment on the defendant's assertion

A) As to this, the Defendant asserts that the grace period is not applicable to a company that fails to meet the standards for substantial independence of its ownership and management pursuant to Article 2(2)3 of the former Restriction of Special Taxation Act. As such, the Defendant asserts that the ○○ Maintenance, whose total amount of assets is at least 500 billion won, owns 40/100 of the total number of issued and outstanding shares, and whose substantial independence is not recognized, the application of the grace period is excluded

Article 2 (2) of the former Enforcement Decree of the Restriction of Special Taxation Act shall expand the scale of small and medium enterprises under paragraph (2).

The grace period is prescribed when it is not a small or medium enterprise, and the proviso of the same paragraph is prescribed.

Article 3(2) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises provides that the grace period shall not apply when a company ceases to be a small and medium enterprise due to the amendment of the attached Table of the Enforcement Decree of the Framework Act on Small and Medium Enterprises, while setting the grace period when a company ceases to be a small and medium enterprise due to the amendment of the attached Table of the Enforcement Decree of the Framework Act on Small and Medium Enterprises.

Unlike the case where a company ceases to be a small or medium enterprise due to expansion of its scale, it is not subject to special taxation due to the amendment of the attached Table of the Enforcement Decree of the Framework Act on Small and Medium Enterprises, due to the reasons not attributable to the party concerned. In this case, it is necessary to further protect the party's trust in the application of special taxation without exception of the grace period.

Therefore, without expanding the scale, the Plaintiff’s amendment of the attached Table of the Enforcement Decree of the Framework Act on Small and Medium Enterprises, which was no longer a small and medium enterprise in 2006, shall be deferred to a small and medium enterprise until the taxable year in 2009 pursuant to Article 2(5) of the former Enforcement Decree of the Restriction of Special Taxation Act. Since Article 2(2) of the former Enforcement Decree of the Restriction of Special Taxation Act does not apply

B) Next, the Defendant asserts that the Enforcement Decree of the Framework Act on Small and Medium Enterprises was amended by Presidential Decree No. 17606 on May 20, 2002, and the Enforcement Decree of the Framework Act on Small and Medium Enterprises is no longer nonexistent, and the Plaintiff is not a small and medium enterprise due to the amendment of the attached Table 2 of the Enforcement Decree of the Framework Act on Small and Medium Enterprises, and that the amendment of the attached Table 2(5) of the Enforcement Decree of the Framework Act on Special Taxation does not become a small and medium enterprise due to the amendment of the attached Table 2(5) of the former Enforcement Decree of the Framework Act on

Article 2 (5) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by the Enforcement Decree of the Framework Act on Small and Medium Enterprises) if a company ceases to be a small and medium enterprise due to the amendment of the attached Table of

The former Enforcement Decree of the Framework Act on Small and Medium Enterprises (amended by Presidential Decree No. 17606 of May 20, 2002) stipulates that "the number of workers, capital or sales of small and medium enterprises shall be deemed small and medium enterprises until the taxable year to which the day belongs and the next three taxable years shall be deemed small and medium enterprises."

Although the above amendment of the Enforcement Decree of the Framework Act on Small and Medium Enterprises added the standards of small and medium enterprises through the amendment of the above Enforcement Decree of the Framework Act on Small and Medium Enterprises, the Enforcement Decree of the Framework Act on Small and Medium Enterprises and the revised Enforcement Decree of the Framework Act on Small and Medium Enterprises, which are at issue in this case, set the standards of scale of regular workers, capital or sales by type

Article 2 (1) 1 of the Enforcement Decree of the Restriction of Special Taxation Act provides that the Enforcement Decree of the Framework Act on Small and Medium Enterprises, such as setting the requirements for small and medium enterprises to be within the scope of the attached Table 1 of the Enforcement Decree of the Framework Act on Small and Medium Enterprises by type of business, shall not be divided, but shall not be included in the amendment of the attached Table 1 of the Enforcement Decree of the Framework Act on Small and Medium Enterprises under Article 2 (5) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises. ② If the amendment of the attached Table 2 (5) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises is not included in the amendment of the attached Table 1 of the Framework Act on Small and Medium Enterprises, it would result in the conclusion that the above provision would not be subject to the grace period under Article 2 (2) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises, but it would not be subject to the amendment of the attached Table 1 of the Framework Act on Small and Medium Enterprises.

Therefore, the instant disposition should be revoked on the ground that it is unlawful without examining the remainder of the Plaintiff’s remaining arguments.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.