Seoul Administrative Court 2010Guhap45651 ( October 16, 2011)

Cho High Court Decision 2009No3114 (Law No. 13, 2010)

Facilities generating effective energy, such as steam and hot water, using waste heat, process heat, and waste gas, fall under "facilities for energy use".

The facilities generating effective energy, such as steam and hot water, using the burning heat, process heat, waste heat, and waste gas, discharged from the equipment for the development of a master-water generation, shall be deemed to constitute "facilities for the use of energy".

2011Nu27393 The revocation of the disposition of revocation of the imposition of corporate tax and the rejection of the request for rectification

Korean AAAAA Corporation

Samsung Head of Samsung Tax Office

Seoul Administrative Court Decision 2010Guhap45651 Decided June 16, 2011

April 5, 2012

April 19, 2012

1.The judgment of the first instance shall be modified as follows:

A. The Defendant against the Plaintiff:

1) Disposition of imposition of KRW 000 of the corporate tax for the business year 2003 dated March 1, 2009;

2) The part of the rejection disposition regarding the reduction request of 000 won of corporate tax in the year 2004 dated April 16, 2009, which exceeds 000 won, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. 5% of the total litigation costs are assessed against the Plaintiff, and 95% are assessed against the Defendant, respectively.

The judgment of the first instance shall be revoked. The defendant's disposition of imposing corporate tax of KRW 000 on the plaintiff for the business year 2003 dated March 11, 2009 and the disposition of rejecting the application for reduction or correction of KRW 000 of corporate tax for the business year 2004 dated April 16, 2009 shall be revoked.

1. Details of the disposition;

The court's reasoning for this part is as stated in the corresponding part of the judgment of the court of first instance (the second half to third second half). Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, and Article 420 of the Civil Procedure Act.

2. Whether the first and second dispositions in this case are lawful

A. The plaintiff's assertion

1) The first and second equipment of this case (hereinafter collectively referred to as the "first equipment of this case") is the equipment that generates energy again by using waste heat. The second equipment of this case is the equipment that enhances the burning efficiency of diesel engines and reduces exhaust gas, and all of which are the equipment that generates heat or electric power by using heat in Article 13-2 of the former Enforcement Rule of the Restriction of Special Taxation Act (amended by Ordinance of the Ministry of Finance and Economy No. 396 of October 16, 2004; hereinafter referred to as the "Enforcement Rule of the Restriction of Special Taxation Act of this case") (hereinafter referred to as the "Attachment 8-3 of the attached Table of this case") among the energy-saving facilities stipulated in Article 13-2 of the former Enforcement Rule of the Restriction of Special Taxation Act (hereinafter referred to as the "Enforcement Rule of the Restriction of Special Taxation Act").

2) The first and second facilities of this case constitute “energy generation and supply facilities” as stipulated in the attached Table 1 of this case.

3) The above interpretation has been confirmed several times through the existing authoritative interpretation by the National Tax Service, and in particular, in relation to the corporate tax for the business year 2003, the defendant reversed the above interpretation without any special circumstances despite receiving the plaintiff's request for refund. The first and second dispositions of this case violate the principle of protection of trust.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) As to the first facility of this case

A) Article 25-2 (1) of the former Restriction of Special Taxation Act (amended by Act No. 7322 of Dec. 31, 2004; hereinafter "former Restriction of Special Taxation Act") provides that where a national makes an investment in the energy-saving facilities as prescribed by the Presidential Decree by December 31, 2005, the amount equivalent to 7/100 of the investment amount shall be deducted from corporate tax. Article 22-2 (1) 1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by the Presidential Decree No. 18704 of Feb. 19, 2005; hereinafter "former Enforcement Decree of the Restriction of Special Taxation Act") provides that the energy-saving facilities as prescribed by the Presidential Decree in Article 25-2 (1) of the Restriction of Special Taxation Act are "facilities as energy-saving facilities as prescribed by the Ordinance of the Ministry of Finance and Economy", and Article 13-2 (1) of the Enforcement Rule of the Restriction of Special Taxation Act provides that "facilities as prescribed by the Ordinance of the Ministry of the Ministry of Finance and Economy" shall be attached Table 3.

B) The provisions of the attached Table of this case stipulate ‘energy rationalization facilities' as one of ‘energy conservation facilities', ‘energy generation and supply facilities (a) and ‘energy use facilities (b)' as its sub-items, ‘energy use facilities' are one of the above ‘energy use facilities', and ‘facilities generating effective energy, such as steam and hot water using smoke heat, process heat, waste heat, and waste gas' are defined as ‘facilities generating effective energy, such as steam and hot water' as its sub-items. Accordingly, it is examined whether the facility of this case falls under ‘facilities for energy use', especially ‘facilities for steam and hot water generation' using smoke heat, process heat, waste heat, and waste gas.

(1) Comprehensively taking account of the purport of the argument in Gap evidence No. 8, the Busan power plant first produces a master water back to the gas source generated by burning LNG. The Busan power plant designed and installed in the way of producing double-lane electricity by using the steam turbine and returning the steam turbine back to the steam by using the heat from the vacant. Of the instant facility No. 1, the frequency boiler among the instant facilities is a facility producing steam by using the heat from the vacant, and the steam turbine is a facility producing electricity using the steam produced from the layout recovery boiler. The fact that the steam turbine is a facility producing electricity by using the steam produced from the layout recovery boiler; the installation and operation of the instant facilities and operation of the instant facilities, thereby raising the heat efficiency as a whole, compared to the operation of only the master water turbine.

(2) According to Article 2(3) of the former Restriction of Special Taxation Act, the classification of types of business shall comply with the Korean Standard Industrial Classification published by the Statistics Korea. According to the Korean Standard Industrial Classification, "industrial activities of the company that directly produces electricity using power generation facilities as power generation facilities, nuclear power, water power, wind power, solar power, solar power, assistance and other energy sources" are classified as "power generation business." Thus, it is reasonable to view the first facility of this case, which produces two lanes of electricity again by using heat generated after the production of electricity in the first place, as facilities belonging to the category of "industry".

(3) The term "waste heat" as stipulated in the attached Table of this case means not only the heat that has to be disposed of without any appearance, but also the remaining heat after performing a specific purpose in other processes. It is reasonable to view that the heat generated after the production of electricity by using a first-laner in the Busan Power Plant constitutes such "waste heat". The complex thermal power plant can not be deemed as "waste heat" even if the entire facilities for the second generation by using steam emitted from the first generation, even if the complex thermal power plant gets out of the whole facilities by using the steam emitted from the first generation, it cannot be deemed that the heat discharged after the first generation is not "waste heat," and there is no basis to view the temperature of the waste heat otherwise.

(4) According to Article 2 of the former Energy Use Rationalization 2 (amended by Act No. 7860 of March 3, 2006; hereinafter the same), "Energy Use Facilities" (No. 3) and "Energy Supply Facilities" (No. 7), which are installed to produce, convert, transport, or store energy, are divided into "Energy Supply Facilities" (No. 1) and "Rules of the attached Table 2, which generate effective energy such as steam and hot water by using heat, waste heat, waste heat, and waste gas" and "other facilities generating heat or electric power," which do not fall under the requirements of the attached Table 1, and it is reasonable to distinguish the "Rules 2, which are different from those of the attached Table 3," and the "Rules 1, which do not fall under the requirements of the former Enforcement Rule of the Restriction of Special Taxation Act."

(5) The first facility of this case is originally designed for energy development from the beginning, and even if it was actually designed in a single facility in the form of a single facility combining the first facility, which is the first electric power production facility, with a view to enhancing heat efficiency in the process of power generation, in the case of simple thermal power generation, the exhaust heat from the first facility of this case and the second facility of this case are discarded as it is. The power generation facility producing electricity by driving the first facility of this case and the vacant is deemed a separate facility that can be separated from its facility and function. The first facility of this case seems to be a separate facility that can be separated from its facility and the first facility for the generation of electricity is installed for the purpose of using such waste heat for the purpose of increasing energy efficiency. The first facility of this case would be deemed to be an energy use facility under the former Restriction of Special Taxation Act and would be eligible for tax credit. On the other hand, it would be extremely unfair to interpret the part of the first facility of this case as the energy use facility of this case.

(c) small decision;

Therefore, since the facility of this case is "facilities generating effective energy, such as steam and hot water, using smoke heat, process heat, and waste gas" in subparagraph 1 (b) (a) (2) of the attached Table of this case, it constitutes "facilities generating effective energy, such as steam and hot water," the entire Disposition No. 1 of this case and the part concerning the facility No. 1-2 of the Disposition No. 2 of this case under different premise are unlawful without any need for review of the remainder of the plaintiff's assertion. Meanwhile, since there is no dispute between the parties as to the point that the amount due to the facility No. 1-2 of this case out of the amount claimed for the reduction of corporate tax for the business year 200, the disposition refusing to correct the part of Disposition No. 2 of this case is unlawful.

2) As to the instant secondary facilities

A) Whether it constitutes an energy use facility

(1) 갑 제6호증, 갑 제11, 12호증의 각 1, 2, 갑 제13호증의 각 기재에 변론 전체의 취지를 종합하면, QQ발전소는 디젤을 엔진에서 연소시켜 발생한 화력으로 발전기를 구동하여 전기를 생산하는 방식으로 설계 및 설치된 사실, 이 사건 제2설비 중 과급기는 디젤엔진에서 나온 폐가스를 이용하여 연소용 공기를 압축하는 장치이고, 공기냉각기는 과급기에서 발생된 압축공기의 팽창을 막고 이를 안정적인 상태로 유지하 기 위하여 압축공기를 냉각시키는 장치로서 별도의 전력으로 구동되는 사실, 이 사건 제2설비에서 생산된 연소용 압축공기는 디젤엔진에 공급이 되고, 이로써 디젤엔진의 효율이 다소 증가하는 사실을 인정할 수 있다.

(2) As the type of “waste energy recovery equipment”, the instant annexed Table provides that “facilities to sprink fuel and raw materials using smoke, waste heat, process heat and waste gas,” and “facilities generating heat or electricity by using other waste resources, such as steam and hot water,” and “facilities producing heat or electricity by using other waste resources.” In other words, the instant annexed Table 2 provides that “facilities generating heat or electricity by heating fuel, etc., such as steam, steam, etc., or by using other waste resources” are “facilities generating heat by using other waste resources.” Although the instant two facilities are facilities supplying waste gas to diesel engines by compressing the air using waste gas from diesel engines, they cannot be deemed as effective energy, such as steam, heat, electricity, etc., and the parts of the instant annexed Table 2 cannot be deemed as effective, regardless of the fact that the instant facilities do not constitute “facilities producing heat or heating energy, etc.,” and it cannot be deemed as effective in the process of collecting energy from the entire heat or heat.

(3) 또한 QQ발전소의 설비 중 디젤엔진과 발전기는 디젤을 연료로 하여 발전을 하는 설비이므로 이 사건 별표 소정의 폐기에너지회수시설에 해당하지 않음은 그 규정 내용에 비추어 명백하고, 원고도 이 점에 관하여는 다툼이 없다. 그런데 이 사건 제2설비는 디젤엔진과 구조 및 기능면에서 분리 가능한 별개의 설비라고 할 수 없고, 오히려 그 구성 부분의 하나로서 디젤엔진과 일체를 이루는 것인데, 이러한 장치는 자동차엔진이나 선박엔진 등 다른 엔진의 효율을 높이기 위하여도 널리 이용되고 있다. QQ발전소 설비 가운데 '유효한 전기에너지를 발생시키는 설비'는 디젤엔진과 발전기 라고 할 수 있고, 이 사건 제2설비는 그 이전의 중간 단계에서 디젤엔진의 효율을 높이기 위하여 이용되는 압축공기를 만드는 장치에 불과하므로, 직접적으로 '유효한 전기 에너지를 발생시키는 설비'라고 할 수는 없다. 따라서 이와 같은 경우 폐기에너지회수 시설에 해당하지 않는 디젤엔진과 일체를 이루는 이 사건 제2설비가 그것과 분리되어 별도로 '폐가스를 이용하여 전기 등 유효한 에너지를 발생시키는 설비'로서 '폐기에너 지회수시설'에 해당한다고 해석할 수는 없다. 만약 그와 같이 해석한다면, 폐가스를 이 용하여 생산된 압축공기를 디젤엔진이 이용하고 디젤엔진에서 생산된 화력을 발전기가 이용하여 발전하므로 디젤엔진과 발전기도 폐가스를 이용하여 유효한 전기에너지를 생산하는 '폐기에너지회수시설'로 인정할 수밖에 없어 '폐기에너지회수시설'의 적용범위를 비합리적으로 확장하는 결과에 이르게 된다. 이러한 해석은 조세를 감면하는 특혜규정 은 엄격하게 해석하여야 한다는 원칙(대법원 2009. 8. 20. 선고 2008두11372 판결 등 참조)에도 반한다고 할 것이므로, 이 사건 제2설비와 같은 장치를 별도의 에너지절약 시설로 새로이 규정하지 않는 이상, 단지 이 사건 제2설비 중 일부인 과급기가 폐가스를 이용한다는 점만을 들어(공기냉각기는 폐가스를 이용하는 설비도 아니다) 이 사건 제2설비를 이 사건 별표 소정의 '폐기에너지회수설비'의 적용범위에 포함된다고 할 수 는 없다.

B) Whether it constitutes energy generation and supply facilities

There is no evidence to deem that the instant secondary facilities fall under boiler, stoves, and integrated energy facilities, which are energy generation and supply facilities prescribed in paragraphs (1), (2), and (3) of the attached Table 1 of this case.

C) Whether the principle of good faith is violated

(1) The principle of good faith or the principle of respect for tax practice under Article 18(3) of the Framework Act on National Taxes applies only to cases where there are special circumstances that, even if there are circumstances deemed that the protection of taxpayer’s trust is consistent with the concept of justice, and the interpretation of tax-related Acts or the practice of national tax administration generally accepted by taxpayers refers to the extent that, even if erroneous interpretation or practice is done, it is recognized that it is not unreasonable for taxpayers, who are not a specific taxpayer, to trust such interpretation or practice, and the burden of proving the existence of such interpretation or practice is the taxpayer (see Supreme Court Decision 2001Du1253, Oct. 25, 2002).

(2) Even if there were the authoritative interpretation of the National Tax Service, such as the Plaintiff’s assertion, it cannot be deemed that it has external binding force, as well as there are no data to be generally accepted by the taxpayers or to be viewed as a public opinion that is the subject of taxpayer’s trust, and ② the Plaintiff did not apply for the tax credit for the amount invested in the instant No. 2 when filing and paying the initial corporate tax, and ③ the Defendant, as a confined agency, has no choice but to make the disposition No. 2 in accordance with the Board of Audit and Inspection’s pointed out, in light of the special circumstances that the Defendant had no choice but to make the instant disposition No. 2 in accordance with the Board of Audit and Inspection’s pointed out, it cannot be said that the part concerning the instant No. 2 Facilities

(d)Smallness;

Therefore, among the disposition No. 2 of this case, the part on the facility No. 2 of this case (=000 won -000 won) is legitimate. The plaintiff's assertion on this is without merit.

3. Conclusion

Therefore, the entire Disposition No. 1 and the part of Disposition No. 2 of this case in excess of KRW 000 concerning the equipment No. 2 of this case (the part concerning the equipment No. 1-2 of this case) shall be revoked illegally, and the plaintiff's claim concerning the remaining part of Disposition No. 2 of this case (the part concerning the equipment No. 2 of this case) shall be dismissed as it is without merit. The judgment of the court of first instance shall be revoked partially differently, and it is so unfair that part of the plaintiff's appeal is accepted and the judgment of the court of first instance shall be modified as above,