Where it is found that a corporation subject to a retroactive deduction of losses is not a corporation after a refund of corporate tax by a retroactive deduction of losses, whether it may be collected under Article 66(2)1 and (4) of the former Corporate Tax Act, on the ground that there is a need to collect the refund amount (negative)

According to the provisions of Article 110(2) of the Enforcement Decree of the Corporate Tax Act concerning the calculation of the amount refunded at the time of retroactive deduction of deficit, the “tax base for the immediately preceding business year” refers to the tax base before deducting the amount subject to retroactive deduction of deficit. Thus, the case where it is found that the corporation is not subject to retroactive deduction of deficit after receiving the amount of retroactive deduction of deficit does not fall under the case where the corporate tax amount or the tax base amount for the immediately preceding business year differs,” as stipulated under Article 110(6) of the Enforcement Decree of the Corporate Tax Act, and the above case does not fall under the case where there is an error or omission in the grounds for correction of the tax base and the tax amount under Article 66(2)1 and (4) of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 206). Therefore, even if it is found that the corporation is not subject to retroactive deduction of deficit after receiving the corporate tax by retroactive deduction of deficit, it cannot be collected under Article 66(2)1 and (4) of the same.

Articles 14(2), 25(1)1, 60(1), 66(1), 66(2)1, (4), and 72 of the former Corporate Tax Act (Amended by Act No. 8141, Dec. 30, 2006); Article 110(2) and (6) of the Enforcement Decree of the Corporate Tax Act

[Plaintiff-Appellant] Plaintiff 2005Du13506 decided Apr. 26, 2007 (Gong2007Sang, 804)

Plaintiff (Law Firm Rate, Attorneys So-young et al., Counsel for the plaintiff-appellant)

Head of Yeongdeungpo Tax Office

Seoul High Court Decision 2010Nu1448 decided July 8, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

As to the interpretation of tax-related Acts, it shall be interpreted as a legal interpretation, unless there are special circumstances, regardless of the requirements for imposition or exemption, and it shall not be permitted to expand or analogically interpret without reasonable grounds (see Supreme Court Decision 2007Du9884, Oct. 26, 2007, etc.).

Article 60(1), Article 66(1) and (2)1, and Article 66(4) of the former Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006; hereinafter the same shall apply) shall report the tax base and amount of corporate tax on income for the relevant business year within three months from the end of each business year to the domestic corporation liable for tax payment, and where the domestic corporation fails to report the tax base and amount of corporate tax, the head of the district tax office having jurisdiction over the place of tax payment shall determine the tax base and amount of corporate tax, and where there are errors or omissions in the details of return of the domestic corporation which made the report, he shall correct the tax base and amount of tax, and where he finds that there are errors or omissions in the determination or correction after determination or correction, he shall immediately correct the tax base and amount of tax, and where Article 25(1)1 of the Corporate Tax Act has reduced in the amount of tax to the head of the district tax office having jurisdiction over the place of tax payment, he shall refund amount without delay.

Meanwhile, according to the provisions of Article 110(2) of the Enforcement Decree of the Corporate Tax Act concerning the calculation of the amount refunded at the time of retroactive deduction of losses, the “tax base for the immediately preceding business year” refers to the tax base before deducting the amount of retroactive deduction of losses. As such, where it is found that it is not a corporation subject to retroactive deduction of losses after receiving a retroactive deduction of losses, the case does not fall under the “case where the corporate tax amount or the amount of the tax base for the immediately preceding business year differs” as stipulated under Article 110(6) of the Enforcement Decree of the Corporate Tax Act (see Supreme Court Decision 2005Du13506, Apr. 26, 2007). In such a case, it shall not be deemed that there is any error or omission of the tax base and the amount of tax

Therefore, even if a corporation that received corporate tax by a retroactive deduction of deficit is found not to be a corporation subject to a retroactive deduction of deficit, it cannot be collected on the ground that Article 66(2)1 and (4) of the former Corporate Tax Act need to be collected, on the ground that there is no provision to collect the corresponding amount of tax, even though there is no provision to collect the amount of tax.

According to the reasoning of the judgment below, the court below held that the defendant's collection of the tax amount as the corporate tax amount by applying or applying Article 66 (2) 1 and (4) of the former Corporate Tax Act by analogy is unlawful on the ground that the plaintiff is not a small or medium enterprise subject to a retroactive deduction of losses after the plaintiff was refunded corporate tax as stated in its reasoning. The judgment of the court below is just in light of the above legal principles, and there is no error in the misapprehension of legal principles as to the interpretation of Article 66 (2) 1 and (4) of the former Corporate Tax Act

2. Regarding ground of appeal No. 2

This part of the assertion is the first argument in the final appeal and cannot be a legitimate ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)