Seoul Administrative Court-2015-Gu Partnership-74869 ( December 09, 2016)

Education Tax for valuation profit and loss such as currency guidance;

The valuation profit and loss such as monetary guidance falls under the "other profit and loss" under Article 4 (1) 8 of the Enforcement Decree of the Education Tax Act and it is impossible to add it to subparagraph 5 of the same paragraph.

Article 4 of the Enforcement Decree of Education Tax Act

2017Nu74869 and revocation of disposition of imposing education tax and corporate tax

△△ Bank

Head of the tax office;

on January 14, 2017

on 28, 2017

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance shall be revoked. The defendant shall revoke all the disposition of correction of the amount exceeding the amount of each tax stated in the column of "political tax" and the amount of each education tax stated in the separate sheet of education tax on November 26, 2013, and the amount exceeding 53,04,950 won of corporate tax and additional tax205,921,780 won of corporate tax for the business year 2010, and the amount exceeding 43,560,000 won of corporate tax for the business year 2010, and the amount exceeding 53,04,921,780 won of corporate tax for the business year 208.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, except for the use of partial contents and addition of some contents, and thus, it is identical to the entry in the judgment of the court of first instance. Thus, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the

Parts to be dried or added.

○ “13,200,000 won” in Part 3 of Part 15 of the Judgment of the first instance shall be added to “the total of 776,160,000 won in the year 208 through 2012 (the total of 174,240,000 won in the year 208 through 2011, and the total of 174,240,240,000 in the year 2012).”

○ The following shall be added to the 4th sentence below the 8th sentence of the first instance judgment:

(1) Article 4 (2) of the Enforcement Decree of the Education Tax Act lists the revenue amount generated from transactions which increase the net assets, and Article 5 (3) of the Education Tax Act and Article 4 (1) of the former Enforcement Decree of the Education Tax Act (amended by Presidential Decree No. 26076, Feb. 3, 2015) shall be, in principle, included in the education tax base unless the revenue amount of a financial or insurance business entity falling under any subparagraph of Article 4 (2) of the Enforcement Decree of the Education Tax Act does not fall under the revenue amount that is not included in the education tax base (see Supreme Court Decision 2014Du13140, Feb. 12, 2015). As long as the revenue amount of the assessment of assets and liabilities deemed as gains pursuant to Article 42 of the Corporate Tax Act falls under the income tax base, the revenue amount of the financial or insurance business entity shall not be included in the education tax base in principle, since it does not fall under the internal income tax base of Article 4 (2) 2) of the former Enforcement Decree of the Education Tax Act.

Under the 8th sentence of the judgment of the first instance court, the 5th sentence's "(1)" is "B", the 19th sentence's "B" is "B", the 9th sentence in the 19th sentence is "B", the 9th sentence in the 18th sentence is "I", and the 9th sentence in the 18th sentence is "I". The 9th sentence is "I", the 10th sentence in the 10th sentence, and the 10th sentence in the 10th sentence.

Under the 8th ruling of the first instance court, the "one at the middle stage prior to the final realization of the appraised gain or loss of this case as a derivatives transaction profit or loss" in the 8th ruling shall be interpreted as "a taxation requirement under the principle of tax law, or a non-taxation requirement or a tax reduction or exemption requirement under the principle of tax law, and the interpretation of the tax law shall be interpreted as a legal text, barring special circumstances, and it shall not be permitted to expand or analogically interpret without reasonable grounds (see Supreme Court Decision 2002Du9537, Jan. 24, 2003)."

The "amount of foreign exchange transactions" in the 11st attached Table below the 8th judgment of the court of first instance shall be "amount of foreign exchange transactions" as "gains from foreign exchange transactions."

The part of the 13th to 17th of the judgment of the first instance court is as follows.

(5) Article 5 (3) of the Education Tax Act provides that "the amount of revenue of a financial or insurance business entity" means interest, dividend, commission, guarantee fee, securities sales profit and redemption profit, insurance premium, and other amount prescribed by Presidential Decree. Article 4 (1) of the former Enforcement Decree of the Education Tax Act (amended by Presidential Decree No. 26076, Feb. 3, 2015) (amended by Presidential Decree No. 26076, Feb. 3, 2015) lists the amount of revenue of a financial or insurance business entity included in the education tax base, and among them, provides a legal basis for the amount of revenue not falling under the amount of revenue individually and specifically enumerated in subparagraphs 1 through 7 of this Article to be included in the education tax base. As seen above, since the evaluation profit or loss of this case does not fall under any of subparagraphs 1 through 7 of the above Article, it rather conforms to the Acts and subordinate statutes, it is deemed that the evaluation profit or loss falls under "other business profit" referred to in subparagraph 8.

○ The following shall be added to the 11th instance judgment following the 9th instance judgment:

(8) Article 5 (1) 1 and (3) of the Education Tax Act stipulate the tax base of education tax as "amount of revenue of a financial or insurance business entity" and delegates the specific scope thereof to Presidential Decree. If Article 4 (1) 5 of the former Enforcement Decree of the Education Tax Act (amended by Presidential Decree No. 26076, Feb. 3, 2015) is interpreted as not deducting derivatives evaluation profit and loss already imposed in calculating derivatives trading profit and loss, the above Enforcement Decree of the Education Tax Act is deemed unlawful and invalid since it is imposed in excess of the amount of revenue, which is the delegation scope under Article 5 (3) of the Education Tax Act, of the parent corporation. However, as seen above, since foreign exchange trading profit, foreign exchange profit, net profit and loss, etc. are used separately as separate concepts, it cannot be deemed that the "amount of net income" under Article 5 (3) of the Education Tax Act means the amount of net income immediately, and otherwise, there is no evidence that the education tax of this case is imposed in excess of the taxation limit under Article 5 (1) 3) of the Education Tax Act.

(9) Article 4(1)5 of the Enforcement Decree of the Education Tax Act added the phrase “the net profit and loss including the valuation profit and loss in currency guidance, etc. under Article 76(1) of the Enforcement Decree of the Corporate Tax Act and the valuation profit and loss in currency guidance, etc. for avoiding exchange risk under Article 76(2) of the Enforcement Decree of the Corporate Tax Act” to the scope of the revenue amount of finance and insurance business, which is the tax base of education tax by adding the valuation profit and loss in currency guidance, etc. under the Enforcement Decree of the Corporate Tax Act, to the scope of the revenue amount of the education tax, which is the tax base. The Plaintiff’s assertion that the total sum of the valuation profit and loss in currency guidance, etc. under Article 76(1) of the Enforcement Decree of the Corporate Tax Act and the valuation profit and loss in currency guidance, etc. for avoiding exchange risk under Article 4(1) of the Enforcement Decree of the Corporate Tax Act shall not be applied retroactively to the amendment of Article 4(1)5(2) of the Enforcement Decree of the Education Tax Act prior to the amendment of the Enforcement Decree.

○ The “amount of service costs paid” in accordance with 13,20,000 won per month and approximately 776,160,000 won per five years.

Article 14 of the first instance court Decision No. 12 of the same Act provides, “The content of the service provided is nothing more than a simple business,” and “the above-mentioned visit or interview with AA bank through 15 e-mail from March 2010 to September 2012 is merely reported to AA bank or economic social meetings, etc., and there is no evidence to prove that the said AA bank retired from the contract to September 2012 had conducted other services during the five-year period from 2008 to 2012.”

The "amount of additional tax on education tax" in the 14th attached Table of the education tax list of the 14th attached Table of the judgment of the first instance court shall be the "amount of tax on education tax".

2. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.